Summary
adopting the 2nd Circuit's approach to determining whether administrative remedies are available in civil rights actions filed pursuant to 42 U.S.C. § 1983
Summary of this case from Neighbors v. HoltorfOpinion
No. CV05-2853-PHX-DGC (JM).
October 18, 2006
ORDER
Pending before the Court is Plaintiff's Motion for Reconsideration and United States Magistrate Judge Marshall's Report and Recommendation ("RR"). Dkt. ##46, 56. The RR recommends that the Court grant the motion and reinstate Counts I and III of the Complaint. Dkt. #56 at 1, 6. The Magistrate Judge advised the parties that they had ten days to file objections to the RR and that failure to file timely objections could be considered a waiver of the right to obtain review of the RR. Id. at 6 (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc)).
The parties did not file objections, which relieves the Court of its obligation to review the RR. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 (1985) ("[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is not the subject of an objection."); Fed.R.Civ.P. 72(b) ("The district judge . . . shall make a de novo determination . . . of any portion of the magistrate judge's disposition to which specific written objection has been made[.]"). The Court has nonetheless reviewed Judge Marshall's RR and finds it well-taken. The Court will accept the RR, grant Plaintiff's motion, and reinstate Counts I and III of the Complaint. See 28 U.S.C. § 636(b)(1) (stating that the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate"); Fed.R.Civ.P. 72(b) (same).
IT IS ORDERED:
1. Magistrate Judge Marshall's RR (Dkt. #56) is accepted.
2. Plaintiff's Motion for Reconsideration (Dkt. #46) is granted and Counts I and III of the Complaint are reinstated.
3. Magistrate Judge Marshall will continue supervision of this case.