Russell v. Washoe County Public Defenders Office et al

Filing 4

ORDER accepting and adopting in its entirety ECF No. 3 R&R; dismissing without prejudice this case for failure to state a claim; denying as moot ECF No. 1 IFP application; directing Clerk to send Plaintiff forms and instructions (mailed 12/22/2016); directing Clerk to close case. Signed by Judge Miranda M. Du on 12/22/2016. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 JAMELLE L. RUSSELL, Case No. 3:16-cv-00585-MMD-WGC Plaintiff, 9 v. 10 11 12 WASHOE COUNTY PUBLIC DEFENDER, et al., ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE WILLIAM G. COBB Defendants. 13 14 Before the Court is the Report and Recommendation of United States Magistrate 15 Judge William G. Cobb (ECF No. 3) (“R&R”) relating to plaintiff’s application to proceed 16 in forma pauperis (ECF No. 1) and pro se complaint (ECF No. 1-1). Plaintiff had until 17 October 31, 2016, to object to the R&R. To date, no objection has been filed. 18 This Court “may accept, reject, or modify, in whole or in part, the findings or 19 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 20 timely objects to a magistrate judge’s report and recommendation, then the court is 21 required to “make a de novo determination of those portions of the [report and 22 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails 23 to object, however, the court is not required to conduct “any review at all . . . of any issue 24 that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). 25 Indeed, the Ninth Circuit has recognized that a district court is not required to review a 26 magistrate judge’s report and recommendation where no objections have been filed. See 27 United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard 28 of review employed by the district court when reviewing a report and recommendation to 1 which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 2 1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the 3 view that district courts are not required to review “any issue that is not the subject of an 4 objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then 5 the court may accept the recommendation without review. See, e.g., Johnstone, 263 F. 6 Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to 7 which no objection was filed). 8 Nevertheless, this Court finds it appropriate to engage in a de novo review to 9 determine whether to adopt Magistrate Judge Cobb’s R&R. The Magistrate Judge 10 recommends dismissing without prejudice the complaint for failure to state a claim and 11 denying the application to proceed in forma pauperis as moot. Upon reviewing the R&R 12 and records in this case, this Court finds good cause to adopt the Magistrate Judge’s 13 R&R in full. 14 It is therefore ordered, adjudged and decreed that the Report and 15 Recommendation of Magistrate Judge William G. Cobb (ECF No. 3) is accepted and 16 adopted in its entirety. 17 It is ordered that this case is dismissed without prejudice for failure to state a 18 claim. Plaintiff’s application to proceed in forma pauperis (ECF No. 1) is denied as moot. 19 It is further ordered that the Clerk send Plaintiff two (2) copies of an in forma 20 pauperis application form for a prisoner, one (1) copy of the instructions for the same, 21 two (2) copies of a blank 28 U.S.C. § 2254 habeas corpus form, and one (1) copy of the 22 instructions for the same. Plaintiff is advised that he may file a habeas corpus petition 23 and an in forma pauperis application in a new action, but he may not file any further 24 documents in this action. 25 The Clerk is instructed to close this case. 26 DATED THIS 22nd day of December 2016. 27 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 28 2

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