Schmitt v. Lyon County Sheriff et al

Filing 5

ORDER - The Report and Recommendation (ECF No. 3 ) is accepted and adopted in its entirety. Plaintiff's IFP application (ECF No. 1 ) is granted. Nevertheless, the full filing fee will still be due. NDOC shall pay Clerk from Inmate account. Clerk shall send copy this order to NDOC Inmate Services. (Mailed 7/20/2017; Email (NEF) to Finance.) Clerk detach and file the complaint (ECF No. 1 -1). Defendant Judge Fletcher is dismissed with prejudice. Lyon County Sheriffs Office is dismissed . Plaintiff is given leave to file an amended complaint to name the correct defendant, Lyon County. The Court notes that Plaintiff has filed the amended complaint and will be permitted to proceed on his amended complaint. (ECF No. 4 .) Signed by Judge Miranda M. Du on 7/21/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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GREG SCHMITT,

Case No. 3:17-cv-00117-MMD-WGC
Plaintiff,

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v.
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LYON COUNTY SHERIFF,

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

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Defendant.
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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” or “Recommendation”) relating to plaintiff’s

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application to proceed in forma pauperis (ECF No. 1) and pro se complaint (ECF No. 1-

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1). Plaintiff had until July 10, 2017, to file an objection. To date, no objection to the R&R

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has been filed. Plaintiff, however, has filed an amended complaint. (ECF No. 4.)

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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. Upon reviewing the R&R

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and proposed complaint, this Court finds good cause to accept and adopt the Magistrate

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Judge’s R&R in full.
It

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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 further ordered that plaintiff’s application to proceed in forma pauperis (ECF

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No. 1) without having to prepay the full filing fee is granted; plaintiff will not be required to

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pay an initial installment fee. Nevertheless, the full filing fee will still be due, pursuant to

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28 U.S.C. § 1915, as amended by the Prisoner Litigation Reform Act of 1996. Plaintiff is

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permitted to maintain this action to conclusion without the necessity of prepayment of

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fees or costs or the giving of security therefor. This order granting in forma pauperis

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status shall not extend to the issuance of subpoenas at government expense.

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It is further ordered that, pursuant to 28 U.S.C. § 1915, as amended by the

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Prisoner Litigation Reform Act of 1996, the Nevada Department of Corrections will pay to

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the Clerk of the United States District Court, District of Nevada, 20% of the preceding

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month's deposit to the account of Greg Schmitt, Inmate No. 78153 (in months that the

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account exceeds $10.00) until the full $350 filing fee has been paid for this action. The

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Clerk will send a copy of this order to the Attention of the Chief of Inmate Services for the

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Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702.

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It is further ordered that, even if this action is dismissed, or is otherwise

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unsuccessful, the full filing fee will still be due, pursuant to 28 U.S.C. §1915, as

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amended by the Prisoner Litigation Reform Act of 1996.

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

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It is further ordered that Defendant Judge Fletcher is dismissed with prejudice.

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It is further ordered that Lyon County Sheriff’s Office is dismissed.

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It is further ordered that Plaintiff be given leave to file an amended complaint to

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name the correct defendant, Lyon County. The Court notes that Plaintiff has filed the

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amended complaint and will be permitted to proceed on his amended complaint. (ECF

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No. 4.)

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DATED THIS 21st day of July 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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