Opinion
Case No. 2:17-CV-1341 JCM (CWH)
08-31-2017
BRIAN BORENSTEIN, Plaintiff(s), v. EMERALD SUITES, Defendant(s).
ORDER
Presently before the court is Magistrate Judge Hoffman's report and recommendation ("R&R"). (ECF No. 4). No objections have been filed, and the deadline for filing objections has since passed.
I. Facts
On May 11, 2017, pro se plaintiff Brian Borenstein filed an application to proceed in forma pauperis along with numerous case-initiating documents. (ECF Nos. 1, 2). On May 15, plaintiff filed a motion to stay eviction. (ECF No. 3). On May 17, 2017, Magistrate Judge Hoffman issued the instant R&R. (ECF No. 4).
II. Legal Standard
This court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 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).
Nevertheless, this court finds it appropriate to engage in a de novo review to determine whether to adopt the recommendation of the magistrate judge.
A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide "[a] short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
In the R&R, Magistrate Judge Hoffman noted that plaintiff has not filed a formal complaint. (ECF No. 4). Magistrate Judge Hoffman found that plaintiff's filings, even when liberally construed, do not state a cause of action. Id. Further, Magistrate Judge Hoffman noted that plaintiff's filings do not explain why a federal court would have jurisdiction over the action. Id.
Upon reviewing the recommendation and underlying briefs, the court finds that good cause appears to adopt the magistrate judge's findings. The filings do not offer any detail regarding the eviction or why it was unlawful. (See ECF No. 5). Further, the filings do not demonstrate why the court possesses jurisdiction over the action. See id. The plaintiff has thus failed to state a claim upon which relief may be granted. See Twombly, 550 U.S. at 555.
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Magistrate Judge Hoffman's report and recommendation (ECF No. 4) be, and the same hereby is, ADOPTED in its entirety.
IT IS FURTHER ORDERED that plaintiff's complaint (ECF No. 5) be, and the same hereby is, DISMISSED without prejudice.
IT IS FURTHER ORDERED that plaintiff has thirty (30) days from the date of this order to file an amended complaint. Failure to file an amended complaint (or request an extension for leave to file) within thirty (30) days will result in dismissal of the action.
IT IS FURTHER ORDERED that plaintiff's motion to stay eviction (ECF No. 3) be, and the same hereby is, DENIED without prejudice.
DATED August 31, 2017.
/s/ James C. Mahan
UNITED STATES DISTRICT JUDGE