Sims v. The New York State et al

Filing 5

ORDER that the Report and Recommendation of Magistrate Judge William G. Cobb ECF No. 3 is accepted and adopted in part; action is transferred to the U.S. District Court for the Western District of New York. Signed by Judge Miranda M. Du on 2/12/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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AZUJHON SIMS,

Case No. 3:17-cv-00573-MMD-WGC
Plaintiff,

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v.
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THE NEW YORK STATE, ERIE COUNTY
DEPARTMENT OF SOCIAL SERVICES,
et al.,

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

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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” or “Recommendation”) relating to plaintiff’s

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application to proceed in forma pauperis (“IFP application”) (ECF No. 1) and pro se

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complaint (ECF No. 1-1). Judge Cobb recommends denying Plaintiff’s IFP application

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without prejudice and that this case be dismissed without prejudice. Plaintiff does not

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object but requests that his action be transferred to the district court in which it could

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have been brought. (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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The Court agrees with the Magistrate Judge’s finding that venue is not proper in

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this court.

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dismissal instead of a transfer, the Court finds that the interest of justice warrants a

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transfer of this case to the court where the action could have been brought—the United

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States District Court for the Western District of New York. See 28 U.S.C. § 1406(a).

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It

is

In light of Plaintiff’s pro se status and claim of a burden imposed with

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 part.

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It is further ordered that this action is transferred to the United States District
Court for the Western District of New York.
DATED THIS 12th day of February 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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