Sims v. The New York State et al
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)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Case No. 3:17-cv-00573-MMD-WGC
THE NEW YORK STATE, ERIE COUNTY
DEPARTMENT OF SOCIAL SERVICES,
ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
WILLIAM G. COBB
Before the Court is the Report and Recommendation of United States Magistrate
Judge William G. Cobb (ECF No. 3) (“R&R” or “Recommendation”) relating to plaintiff’s
application to proceed in forma pauperis (“IFP application”) (ECF No. 1) and pro se
complaint (ECF No. 1-1). Judge Cobb recommends denying Plaintiff’s IFP application
without prejudice and that this case be dismissed without prejudice. Plaintiff does not
object but requests that his action be transferred to the district court in which it could
have been brought. (ECF No. 4.)
This Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party
timely objects to a magistrate judge’s report and recommendation, then the court is
required to “make a de novo determination of those portions of the [report and
recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails
to object, however, the court is not required to conduct “any review at all . . . of any issue
that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).
Indeed, the Ninth Circuit has recognized that a district court is not required to review a
magistrate judge’s report and recommendation where no objections have been filed. See
United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard
of review employed by the district court when reviewing a report and recommendation to
which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,
1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the
view that district courts are not required to review “any issue that is not the subject of an
objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then
the court may accept the recommendation without review. See, e.g., Johnstone, 263 F.
Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to
which no objection was filed).
The Court agrees with the Magistrate Judge’s finding that venue is not proper in
dismissal instead of a transfer, the Court finds that the interest of justice warrants a
transfer of this case to the court where the action could have been brought—the United
States District Court for the Western District of New York. See 28 U.S.C. § 1406(a).
In light of Plaintiff’s pro se status and claim of a burden imposed with
Recommendation of Magistrate Judge William G. Cobb (ECF No. 3) is accepted and
adopted in part.
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.
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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