Opinion
No. 3:12-cv-00406-PK
11-27-2012
RODERICK HUNTER, Petitioner, v. J. E. THOMAS, Warden, FCI Sheridan, et al., Respondents.
OPINION AND ORDER ADOPTING
FINDINGS AND RECOMMENDATION
SIMON, District Judge.
Magistrate Judge Paul Papak issued findings and recommendation in the above-captioned case on October 23, 2012. Dkt. 13. Judge Papak recommended that Petitioner's Petition for Writ of Habeas Corpus, Dkt. 1, be DENIED without prejudice for lack of subject matter jurisdiction. No party has filed objections.
Under the Federal Magistrates Act ("Act"), the 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). If a party files objections to a magistrate's findings and recommendations, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.;Fed. R. Civ. P. 72(b)(3).
If no party objects, the Act does not prescribe a standard of review. In such cases, "[t]here is no indication that Congress . . . intended to require a district judge to review a magistrate's report[.]" Thomas v. Arn, 474 U.S. 140, 152 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), cert. denied, 540 U.S. 900 (2003) (the court must review de novo magistrate's findings and recommendations if objection is made, "but not otherwise").
Although review is not required in the absence of objections, the Act "does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard." Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ. P. 72(b) recommend that "[w]hen no timely objection is filed," the court review the magistrate's findings and recommendations for "clear error on the face of the record."
No party having made objections, this Court follows the recommendation of the Advisory Committee and reviews Magistrate Judge Papak's findings and recommendation for clear error on the face of the record. No such error is apparent. Therefore the court orders that Judge Papak's findings and recommendation, Dkt. 13, are ADOPTED. Petitioner's Petition for Writ of Habeas Corpus, Dkt. 1, is DENIED without prejudice for lack of subject matter jurisdiction. Any appeal of this dismissal would not be taken in good faith. 28 U.S.C. § 1915(a)(3).
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Michael H. Simon
United States District Judge