Navas v. Polaha et al

Filing 9

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION - The Report and Recommendation (ECF No. 8 ) is accepted and adopted in its entirety. IFP Application (ECF Nos. 5 , 7 ) is granted. However NDOC shall pay clerk from inmate account until full $350 filing fee is paid. Clerk shall send this Order to NDOC Inmate Services. (Mailed to NDOC 7/17/2018. Email (NEF) to Finance.) Clerk shall file the complaint (ECF No. 1 -1). Plaintiff's claims are dismissed with prejudice. Clerk shall enter judgment accordingly and close this case. Signed by Judge Miranda M. Du on 7/17/2018. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA *** 8 9 JULIO CESAR NAVAS, Case No. 3:18-cv-00019-MMD-WGC Plaintiff, 10 v. 11 POLAHA, et al., ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE WILLIAM G. COBB Defendants. 12 13 Before the Court is the Report and Recommendation of United States Magistrate 14 Judge William G. Cobb (ECF No. 8) (“R&R”) relating to Plaintiff’s application to proceed 15 in forma pauperis (“IFP”) (ECF Nos. 5, 7) and pro se complaint (ECF No. 1-1). Plaintiff 16 had until June 19, 2018 to file an objection. (ECF No. 5.) To date, no objection to the 17 R&R has been filed. 18 This Court “may accept, reject, or modify, in whole or in part, the findings or 19 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 20 timely objects to a magistrate judge’s report and recommendation, then the court is 21 required to “make a de novo determination of those portions of the [report and 22 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails 23 to object, however, the court is not required to conduct “any review at all . . . of any issue 24 that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). 25 Indeed, the Ninth Circuit has recognized that a district court is not required to review a 26 magistrate judge’s report and recommendation where no objections have been filed. See 27 United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard 28 of review employed by the district court when reviewing a report and recommendation to 1 which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 2 1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the 3 view that district courts are not required to review “any issue that is not the subject of an 4 objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then 5 the court may accept the recommendation without review. See, e.g., Johnstone, 263 F. 6 Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to 7 which no objection was filed). 8 Although Plaintiff has not objected to the R&R, the Court will conduct a de novo 9 review to determine whether to adopt the R&R. Judge Cobb recommends granting 10 Plaintiff’s IFP application. (ECF No. 8 at 2.) Judge Cobb further recommends dismissing 11 Plaintiff’s claims with prejudice. (Id. at 4.) Having reviewed the R&R and the proposed 12 complaint, the Court agrees and will adopt the R&R. It 13 is therefore ordered, adjudged and decreed that the Report and 14 Recommendation of Magistrate Judge William G. Cobb (ECF No. 8) is accepted and 15 adopted in its entirety. It is further ordered that Plaintiff’s application to proceed in forma pauperis (ECF 16 17 Nos. 5, 7) is granted. However, Plaintiff will be required, to pay, through NDOC, an initial 18 partial filing fee in the amount of $13.84, within thirty days of the entry of this Order. 19 Thereafter, whenever his prison account exceeds $10, Plaintiff will be required to make 20 monthly payments in the amount of twenty percent of the preceding month’s income 21 credited to his account until the full $350 filing fee is paid. The Clerk is directed to send a 22 copy of any this Order to the attention of Chief of Inmate Services for the Nevada 23 Department of Prisons, P.O. Box 7011, Carson City, NV 89702. 24 It is further ordered that the Clerk detach and file the complaint (ECF No. 1-1). 25 It is further ordered Plaintiff’s claims are dismissed with prejudice. 26 /// 27 /// 28 /// 2 1 2 3 The Clerk is directed to enter judgment in accordance with this Order and close this case. DATED THIS 17th day of July 2018. 4 5 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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