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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JAMELLE L. RUSSELL,

Case No. 3:16-cv-00585-MMD-WGC
Plaintiff,

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v.
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WASHOE COUNTY PUBLIC DEFENDER,
et al.,

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE WILLIAM G. COBB

Defendants.

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

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Judge William G. Cobb (ECF No. 3) (“R&R”) relating to plaintiff’s application to proceed

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in forma pauperis (ECF No. 1) and pro se complaint (ECF No. 1-1). Plaintiff had until

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October 31, 2016, to object to the R&R. 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).

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

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

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

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

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

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

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

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

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

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

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which no 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 Cobb’s R&R. The Magistrate Judge

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recommends dismissing without prejudice the complaint for failure to state a claim and

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denying the application to proceed in forma pauperis as moot. Upon reviewing the R&R

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and records in this case, this Court finds good cause to adopt the Magistrate Judge’s

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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 William G. Cobb (ECF No. 3) is accepted and

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adopted in its entirety.

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It is ordered that this case is dismissed without prejudice for failure to state a

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claim. Plaintiff’s application to proceed in forma pauperis (ECF No. 1) is denied as moot.

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It is further ordered that the Clerk send Plaintiff two (2) copies of an in forma

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pauperis application form for a prisoner, one (1) copy of the instructions for the same,

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two (2) copies of a blank 28 U.S.C. § 2254 habeas corpus form, and one (1) copy of the

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instructions for the same. Plaintiff is advised that he may file a habeas corpus petition

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and an in forma pauperis application in a new action, but he may not file any further

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documents in this action.

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The Clerk is instructed to close this case.

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DATED THIS 22nd day of December 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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