Chen v. Russell

Filing 15

ORDER accepting and adopting in its entirety ECF No. 14 R&R; denying ECF No. 7 IFP application; denying ECF No. 12 Request for Issuance of Summons; dismissing without prejudice this action; directing Clerk to close case. Signed by Judge Miranda M. Du on 1/12/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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XUE BAO CHEN ,

Case No. 3:15-cv-00260-MMD-VPC
Plaintiff,

v.
JAMES T. RUSSELL, et al.,

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE
VALERIE P. COOKE

Defendants.

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Before the Court is the Report and Recommendation of United States Magistrate

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Judge Valerie P. Cooke (“R&R”) relating to plaintiff’s motion for leave to proceed in forma

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pauperis (ECF No. 7) and pro se complaint. (ECF No. 14.) Plaintiff had until November

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18, 2016, to object to the R&R. (Id.) To date, no objection has been filed.

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails

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to object, however, the court is not required to conduct “any review at all . . . of any issue

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that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed,

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the Ninth Circuit has recognized that a district court is not required to review a magistrate

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judge’s report and recommendation where no objections have been filed. See United

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States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review

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employed by the district court when reviewing a report and recommendation to which no

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objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D.

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Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that

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district courts are not required to review “any issue that is not the subject of an objection.”).

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Thus, if there is no objection to a magistrate judge’s recommendation, then the court may

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accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at

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1226 (accepting, without review, a magistrate judge’s recommendation to which no

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objection was filed).

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Nevertheless, this Court finds it appropriate to engage in a de novo review to

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determine whether to adopt Magistrate Judge Cooke’s R&R. The Magistrate Judge

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recommended that Plaintiff’s motion for leave to proceed in forma pauperis be denied

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because the application is insufficient, although Plaintiff paid the full filing fee. The

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Magistrate Judge further recommends dismissal of Plaintiff’s complaint without prejudice.

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Upon reviewing the R&R and the filings in this case, this Court finds good cause to adopt

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the Magistrate Judge’s R&R in full.

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It is therefore ordered, adjudged and decreed that the Report and

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Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 14) is accepted and

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adopted in its entirety.

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It is ordered that Plaintiff’s motion for leave to proceed in forma pauperis (ECF No.
7) is denied.
It is further ordered the Plaintiff’s request for issuance of summons (ECF No. 12)
is denied.

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It is further ordered that this action is dismissed without prejudice.

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The Clerk is directed to close this case.

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DATED THIS 12th day of January 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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