Pruitt v. State of Nevada et al

Filing 8

ORDER - The Report and Recommendation (ECF No. 7 ) is accepted and adopted in its entirety. Plaintiff's IFP application (ECF No. 1 ) is granted. Clerk file the Complaint (ECF No. 1 -1). Plaintiff may proceed with his Fourth Amendment claim a gainst Osterman in the first cause of action.The second, third, and fourth causes of action are dismissed as specified herein. Clerk shall issue a summons for defendant Osterman and send Plaintiff copies of the Complaint and service of process for m USM-285. Plaintiff shall complete the USM-285 form and return it with complaint to the USM for service by 8/10/2017. Plaintiff must file a motion re any unserved defendant. Signed by Judge Miranda M. Du on 7/21/2017. (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
10

DAVID MATHEW PRUITT,

Case No. 3:17-cv-00234-MMD-WGC
Plaintiff,

11
v.
12
STATE OF NEVADA, et al.,

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

13
Defendants.
14
15

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

16

Judge William G. Cobb (ECF No. 7) (“R&R” or “Recommendation”) relating to Plaintiff’s

17

Application to Proceed In Forma Pauperis (ECF No. 1) and pro se Complaint (ECF No.

18

1-1). Plaintiff had until July 12, 2017, to object to the Recommendation. To date, no

19

objection to the Recommendation has been filed.

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

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

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

which no objection was filed).

10

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

11

determine whether to adopt Magistrate Judge Cobb’s Recommendation. Upon reviewing

12

the R&R and pro se Complaint, this Court finds good cause to adopt the Magistrate

13

Judge’s Recommendation in full.

14

It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

15

Recommendation of Magistrate Judge William G. Cobb (ECF No. 7) is accepted and

16

adopted in its entirety.

17

It is further ordered that Plaintiff’s IFP application (ECF No. 1) is granted.

18

It is further ordered that the Clerk file the Complaint (ECF No. 1-1).

19

It is further ordered that Plaintiff may proceed with his Fourth Amendment claim

20

against Osterman in the first cause of action.

21

It is further ordered that the second cause of action is dismissed with prejudice;

22

It is further ordered that the third cause of action is dismissed without prejudice.

23

It is further ordered that the fourth cause of action is dismissed with prejudice.

24

It is further ordered that the Clerk to issue a summons for defendant Osterman

25

and send Plaintiff copies of the Complaint and service of process form USM-285. Plaintiff

26

will then have twenty (20) days to complete the USM-285 form and return it to the U.S.

27

Marshal to complete service. Within twenty (20) days of receiving from the U.S. Marshal

28

a copy of the USM-285 form showing whether service has been accomplished, Plaintiff
2

1

must file a notice with the Court indicating whether the defendant was served. If service

2

was not effectuated, and if Plaintiff wishes to have service again attempted, he must file

3

a motion with the Court specifying the unserved defendant and providing a more detailed

4

name or address for that defendant, or indicating that some other manner of service

5

should be attempted. Plaintiff is reminded that, pursuant to Federal Rule of Civil

6

Procedure 4(m), service must be accomplished within ninety (90) days of the date of the

7

filing of the Complaint. Should Plaintiff require an extension of time to complete service,

8

he must file a motion seeking an extension supported by good cause before the ninety

9

(90) days has expired.

10

DATED THIS 21st day of July 2017.

11
12
13

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3