Opinion
Case No. 3:19-cv-00223-MMD-CBC
10-25-2019
RICHARD POWELL, Plaintiff, v. DARYLENE HOLYFIELD KING, Defendant.
ORDER
Plaintiff Richard Powell brings this action pro se under 42 U.S.C. § 1983. Before the Court is the Report and Recommendation ("R&R" or "Recommendation") of United States Magistrate Judge Carla B. Carry (ECF No. 10), primarily recommending that the Court dismiss this action with prejudice. Plaintiff had until October 18, 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 action.
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 Carry's recommendation, the Court will conduct a de novo review to determine whether to adopt the R&R. Judge Carry found that Plaintiff did not adequately allege the violation of a federally protected right by a person who acts under color of state law. (ECF No. 10 at 4.) Plaintiff's claim relates to his belief that Defendant King perjured herself during a hearing at the Reno Municipal Court related to a temporary restraining order. (Id. at 3-4.) But Plaintiff did not provide any allegations to suggest that Defendant King was acting under color of state law when she testified in the Reno Municipal Court. (Id.) Having reviewed the R&R and the Complaint, the Court agrees with Judge Carry.
It is therefore ordered that Judge Carry's Report and Recommendation (ECF No. 10) is adopted in full.
It is further ordered that Plaintiff's original application to proceed in forma pauperis (ECF No. 1) is denied as moot.
It is further ordered that Plaintiff's amended application to proceed in forma pauperis (ECF No. 8) is granted.
It is further ordered that the Clerk of the Court file Plaintiff's Complaint (ECF No. 1-1).
It is further ordered that Plaintiff's Complaint is dismissed with prejudice. /// /// /// ///
It is further ordered that Plaintiff's motions for subpoenas and motion for transcript (ECF Nos. 1-2, 6, 9) are denied as moot.
The Clerk of Court is directed to enter judgment in accordance with this order and close this case.
DATED THIS 25th day of October 2019.
/s/_________
MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE