Opinion
Case No. 3:15-cv-00588-MMD-VPC
12-22-2016
HENRY FROMETA GONZALEZ, Plaintiff, v. JAMES G. COX, et al., Defendants.
ORDER ADOPTING AND ACCEPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE VALERIE P. COOK
Before the Court is the Report and Recommendation of United States Magistrate Judge Valerie P. Cooke (ECF No. 35) ("R&R") relating to Defendants' motion to dismiss (ECF No.23) and Plaintiff's cross-motion for summary judgment (ECF No. 29). The R&R recommends that Defendants' motion to dismiss (ECF No. 23) be granted and Plaintiff's cross-motion for summary judgment (ECF No. 29) be denied. Any objection to the R&R must be filed by December 16, 2016. (ECF No. 35.) To date, no objection to the R&R has been filed.
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).
Nevertheless, this Court finds it appropriate to engage in a de novo review to determine whether to adopt Magistrate Judge Cooke's R&R. The R&R recommends that this action be dismissed in its entirety because the claims are barred by the two-year statute of limitations. The Magistrate Judge's recommendation extends to claims asserted against Defendant Michael Fletcher, who has not yet been served. After reviewing the filings in this case, the Court agrees with the Magistrate Judge's recommendation.
It is therefore ordered, adjudged and decreed that the Report and Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 35) is accepted and adopted in its entirety.
It is ordered that the Defendants' motion to dismiss (ECF No. 23) is granted. Plaintiff's cross-motion for summary judgment (ECF No. 29) is denied. The complaint is dismissed.
It is further ordered that the Clerk enter judgment in accordance with this Order and close this case.
DATED THIS 22nd day of December 2016.
/s/_________
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE