Opinion
Case No. 3:19-cv-00560-MMD-CLB
11-13-2019
BILL LIETZKE, Plaintiff, v. CITY OF BIRMINGHAM, et al., Defendants.
ORDER
Plaintiff Bill Lietzke brings this action under 42 U.S.C. § 1983. Before the Court is the Report and Recommendation ("R&R" or "Recommendation") of United States Magistrate Judge Carla Baldwin (ECF No. 3), recommending that the Court deny Plaintiff's in forma pauperis application ("IFP Application"), and dismiss this case, because he was previously declared a vexatious litigant, and did not obtain leave from the Court before filing this case. Plaintiff had until November 5, 2019 to file an objection. To date, no objection to the R&R has been filed. For this reason, and as explained below, the Court adopts the R&R and will dismiss this case.
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." Id. 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).
While Plaintiff has failed to object to Judge Baldwin's recommendation to deny Plaintiff's IFP application and dismiss this case, the Court will conduct a de novo review to determine whether to adopt the R&R. Judge Baldwin found that Judge Mahan previously deemed Plaintiff a vexatious litigant, requiring him to obtain leave from the Chief Judge before filing any new case—but he did not do so here—so his case must be dismissed. (ECF No. 3.) Having reviewed the R&R and the Complaint, the Court agrees with Judge Baldwin.
It is therefore ordered that Judge Baldwin's Report and Recommendation (ECF No. 3) is accepted and adopted in full.
It is further ordered that Plaintiff's application to proceed in forma pauperis (ECF No. 1) is denied.
It is further ordered this case is dismissed in its entirety.
The Clerk of Court is directed to enter judgment in accordance with this order and close this case.
DATED THIS 13th day of November 2019.
/s/_________
MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE