Opinion
2:23-cv-00141-GMN-EJY
06-29-2023
EDWARD J. WILEY, Plaintiff, v. LAS VEGAS POLICE, et al., Defendants.
ORDER
GLORIA M. NAVARRO, DISTRICT JUDGE.
Pending before the Court is the January 30, 2023, Report and Recommendation (“R&R”), (ECF No. 4), of United States Magistrate Judge Elayna J. Youchah, which recommends, among other things, (1) providing Plaintiff Edward J. Wiley (“Plaintiff”) an opportunity to file an amended complaint that addresses the deficiencies noted in the R&R, and (2) dismissing the case without prejudice if Plaintiff chooses not to file an amended complaint by a deadline imposed by the Court.
Also pending before the Court is the May 9, 2023, R&R, (ECF No. 5), of Magistrate Judge Youchah which recommends that this matter “be dismissed without prejudice for failure to comply with the Court's January 30, 2023 Order.”
When considering dispositive matters, “the magistrate judge may go no further than issuing a report and recommendation to the district court[.]” See Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 2015). The district court reviews the magistrate judge's recommendations de novo. Id. The district 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); D. Nev. R. IB 3-2(b). A party may file specific written objections to the findings and recommendations of the magistrate judge pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); D. Nev. R. IB 3-2. Where a party fails to object, however, the district 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) (citing 28 U.S.C. § 636(b)(1)). Indeed, the Ninth Circuit has recognized that a district judge is not required to review a magistrate judge's report and recommendation where no objections have been filed. See, e.g., United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 2003). Neither party filed an objection to either the January 30, 2023, R&R or the May 9, 2023, R&R.
The January 30, 2023, R&R recommended that Plaintiff be given the opportunity to file an amended complaint to address the deficiencies identified in the R&R, and further recommended that Plaintiff be given until March 1, 2023, to submit an amended complaint. (January 30, 2023, R&R 3:3-7, ECF No. 4). However, before this recommendation had been adopted by the undersigned, the Magistrate Judge issued a second R&R on May 9, 2023, recommending that the matter be dismissed “for failure to comply with the Court's January 30, 2023 Order.” (May 9, 2023, R&R 1:19-20, ECF No. 5). Specifically, Magistrate Judge Youchah found that Plaintiff failed to file an amended complaint by the March 1, 2023, deadline.
A magistrate judge may-but is not required to-recommend that a party be provided an opportunity to file an amended complaint curing any deficiencies in the original complaint highlighted by the magistrate judge. Indeed, Magistrate Judge Youchah's January 30, 2023, Order notes that “it is further recommended that . . . Plaintiff be given one opportunity file an amended complaint that addresses the deficiencies identified above.” (January 30, 2023, R&R 3:6-7). A recommendation, however, must be adopted by the district judge before the party is required to comply with the recommendation. See also Anderson v. Nevada, No. 22-16856, 2023 WL 3092307, at *1 (9th Cir. Apr. 26, 2023) (vacating and remanding order declaring plaintiff a vexatious litigant by adopting in full magistrate judge's recommendation without first providing plaintiff an opportunity to show cause why he should not be deemed a vexatious litigant). A plaintiff cannot be penalized for failing to follow a recommendation of a magistrate judge that was not yet adopted by the district judge. The R&R issued in May incorrectly found that Plaintiff failed to comply with the January R&R because the undersigned never adopted, and therefore never ordered, Plaintiff to file an amended complaint by a certain date. The Court thus REJECTS the May R&R recommending dismissal as premature.
Accordingly, IT IS HEREBY ORDERED that the January 30, 2023, Report and Recommendation, (ECF No. 4), is ADOPTED in full.
IT IS FURTHER ORDERED that Plaintiff shall have until July 28, 2023, to file an amended complaint addressing the deficiencies noted in the January 30, 2023, Report and Recommendation. Failure to file an amended complaint will result in the matter being dismissed without prejudice.
IT IS FURTHER ORDERED that the May 9, 2023, Report and Recommendation (ECF No. 5) is REJECTED.