LACY v. ELLIOTT

Full title: Terry Lee Lacy, Petitioner, v. Darla Elliott, et al., Respondents

Court: United States District Court, D. Arizona

Date published: May 12, 2006

No. CV-05-2944-PHX-SMM (VAM) (D. Ariz. May. 12, 2006)

Opinion

No. CV-05-2944-PHX-SMM (VAM).

May 12, 2006

ORDER

STEPHEN McNAMEE, Chief District Judge

On April 11, 2006, Magistrate Judge Virginia A. Mathis filed a Report and Recommendation, advising this Court that Petitioner's Petition for Writ of Habeas Corpus (Dkt. 1) should be dismissed without prejudice for failure to exhaust remedies, and that Respondents' Motion to Dismiss the Case (Dkt. 12) should be granted. See Dkt. 17. To date, Plaintiff has not filed objections to Judge Mathis'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 his right to challenge the Magistrate's factual findings, but not necessarily the Magistrate'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'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, the Court hereby incorporates and adopts the Magistrate Judge's Report and Recommendation.

CONCLUSION

For the reasons set forth,

IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation of Magistrate Judge Virginia A. Mathis. (Dkt. 17.)

IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus (Dkt. 1) and this action are DISMISSED WITHOUT PREJUDICE. The Clerk of Court shall terminate this action accordingly.

IT IS FURTHER ORDERED that Respondents' Motion to Dismiss be GRANTED. (Dkt. 12.)

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 Virginia A. Mathis.