Miller v. Steinheimer, et al

Filing 6

ORDER ADOPTING AND ACCEPTING REPORT AND RECOMMENDATION - Ordered, adjudged and decreed that the Report and Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 5 ) is accepted and adopted in its entirety. plaintiff's application to p roceed in form pauperis (ECF No. 1 ) is denied. Clerk shall detach and file the complaint (ECF No. 1 -1). The complaint is dismissed without prejudice. Clerk is directed to close this case. Signed by Judge Miranda M. Du on 1/8/2018. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

MARTIN KARI MILLER,

Case No. 3:16-cv-00317-MMD-VPC
Plaintiff,

10
v.
11

CONNIE STEINHEIMER, et al.,

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

12
Defendants.
13
14

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

15

Judge Valerie P. Cooke (ECF No. 5) (“R&R”) relating to plaintiff’s application to proceed

16

in forma pauperis (ECF No. 1) and civil rights complaint (ECF No. 1-1). Plaintiff had until

17

November 8, 2017, to file an objection. (ECF No. 5.) To date, no objection to the R&R

18

has been filed.

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

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

1

of review employed by the district court when reviewing a report and recommendation to

2

which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

3

1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the

4

view that district courts are not required to review “any issue that is not the subject of an

5

objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then

6

the court may accept the recommendation without review. See, e.g., Johnstone, 263 F.

7

Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to

8

which no objection was filed).

9

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

10

determine whether to adopt Magistrate Judge Cook’s R&R.

11

recommends dismissing this action without prejudice based upon Plaintiff’s failure to

12

timely submit a completed application to proceed in forma paueris. (ECF No. 5.) Upon

13

reviewing the R&R and proposed complaint, this Court finds good cause to accept and

14

adopt the Magistrate Judge’s R&R in full.

15

It

is

therefore

ordered,

adjudged

and

decreed

The Magistrate Judge

that

the

Report

and

16

Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 5) is accepted and

17

adopted in its entirety.

18
19

It is ordered that plaintiff’s application to proceed in form pauperis (ECF No. 1) is
denied.

20

It is further ordered that the Clerk detach and file the complaint (ECF No. 1-1).

21

It is further ordered that the complaint is dismissed without prejudice.

22

The Clerk is directed to close this case.

23

DATED THIS 8th day of January 2018.

24
25
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

26
27
28
2