Emm v. Yerington Paiute Tribe et al

Filing 4

ORDERED, adjudged and decreed that the Report and Recommendation (ECF No. 3 ) is accepted and adopted in its entirety. Plaintiff's IFP Application (ECF No. 1 ) is granted. Clerk shall file the complaint. The ICRA claims are dismissed with p rejudice. The FTCA medical negligence claim against Defendant Dr. Vogel is dismissed. Amended complaint as specified herein is due by 5/18/2018. Signed by Judge Miranda M. Du on 4/18/2018. (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

JOHANNA EMM,

Case No. 3:17-cv-00614-MMD-WGC
Plaintiff,

10
v.
11

YERINGTON PAIUTE TRIBE, et al.,

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

12
Defendants.
13
14

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

15

Judge William G. Cobb (ECF No. 3) (“R&R” or “Recommendation”), relating to Plaintiff’s

16

application to proceed in forma pauperis (“IFP Application”) and pro se complaint.

17

Plaintiff had until April 11, 2018 to file an objection. (ECF No. 3.) To date, no objection

18

has been filed.

19

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

20

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

21

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

22

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

23

recommendation] to which objection is made.” Id. Where a party fails to object, however,

24

the court is not required to conduct “any review at all . . . of any issue that is not the

25

subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth

26

Circuit has recognized that a district court is not required to review a magistrate judge’s

27

report and recommendation where no objections have been filed. See United States v.

28

Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review

1

employed by the district court when reviewing a report and recommendation to which no

2

objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D.

3

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

4

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

5

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

6

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

7

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

8

which no objection was filed).

9

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

10

determine whether to adopt Magistrate Judge Cobb’s Recommendation. The Magistrate

11

Judge recommends granting Plaintiff’s IFP Application. The Magistrate Judge further

12

recommends dismissing Plaintiff’s claims under the Indian Civil Rights Act (“ICRA”) with

13

prejudice and dismissing Plaintiff’s claim under the Federal Torts Claim Act (“FTCA”)

14

against Defendant Dr. Bruce G. Vogel but permitting leave to amend to assert the claim

15

against the United States. (ECF No. 3.) Having reviewed the complaint and the R&R, the

16

Court agrees with the Magistrate Judge’s recommendation.

17

It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

18

Recommendation of Magistrate Judge William G. Cobb (ECF No. 3) is accepted and

19

adopted in its entirety.

20

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

21

is permitted to maintain this action without the necessity of prepayment of fees or costs

22

or the giving of security therefor. This order granting IFP status does not extend to the

23

issuance of subpoenas at government expense.

24

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

25

It is further ordered that the ICRA claims are dismissed with prejudice. The FTCA

26

medical negligence claim against Defendant Dr. Vogel is dismissed. Plaintiff is given

27

leave to amend her complaint to assert an FTCA medical negligence claim against the

28

property party, which is the United States. Plaintiff will be given thirty (30) days to file an
2

1

amended complaint consistent with this order. Failure to file an amended complaint may

2

result in dismissal of the FTCA claim with prejudice.

3

DATED THIS 18th day of April 2018.

4
5
6

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3