Opinion
No. CV-05-3263-PHX-SMM (JM).
May 11, 2006
ORDER
On April 4, 2006, Magistrate Judge Jacqueline Marshall filed a Report and Recommendation, advising this Court that Plaintiff's Complaint and this action should be dismissed with prejudice for failure to file a change of address and prosecute this action. [Doc. No. 6] The Report and Recommendation was returned to the Court on April 11, 2006 with the annotation that Plaintiff is no longer in custody [Doc. No. 7], and to date, Plaintiff has not filed objections to Judge Marshall's Report and Recommendation.
STANDARD OF REVIEW
When reviewing a Magistrate Judge's Report and Recommendation, this Court must "make a de novo determination of those portions of the report . . . to which objection is made," and "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)(C); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)).
By failing to object to a Report and Recommendation, a party waives its right to challenge the Magistrate Judge's factual findings, but not necessarily the Magistrate Judge's legal conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (failure to object to Magistrate Judge's legal conclusion "is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal"); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (citing McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980)).
DISCUSSION
Having reviewed the legal conclusions of the Report and Recommendation of the Magistrate Judge, and no objections having been made by Plaintiff thereto and Plaintiff having failed to notify the Court of his address, the Court hereby incorporates and adopts the Magistrate Judge's Report and Recommendation with one modification. The Court changes page 2, line 2 from "244 F.3d 855, 858-859" to "244 F.3d 708, 714."
CONCLUSION
IT IS THEREFORE ORDERED that the Court adopts the Report and Recommendation of Magistrate Judge Jacqueline Marshall [Doc. No. 6] with one modification. Specifically, page 2, line 2 of the Report and Recommendation shall be modified from "244 F.3d 855, 858-59" to "244 F.3d 708, 714."
IT IS FURTHER ORDERED that Plaintiff's Complaint and this action are DISMISSED WITH PREJUDICE. The Clerk of Court shall terminate this action accordingly.
IT IS FURTHER ORDERED that the Clerk of the Court shall send a copy of this Order to all parties as well as to Magistrate Judge Jacqueline Marshall.