Lietzke v. City of Montgomery ( 2019 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 BILL LIETZKE, Case No. 3:19-cv-00570-MMD-WGC 7 Plaintiff, ORDER v. 8 CITY OF MONTGOMERY, et al., 9 Defendants. 10 11 Plaintiff Bill Lietzke brings this action under 42 U.S.C. § 1983. Before the Court is 12 the Report and Recommendation (“R&R” or “Recommendation”) of United States 13 Magistrate Judge William G. Cobb (ECF No. 3), recommending that the Court deny 14 Plaintiff’s in forma pauperis application (“IFP Application”), and dismiss this case, 15 because he was previously declared a vexatious litigant, did not obtain leave from the 16 Court before filing this case, venue appears improper, and jurisdiction appears lacking. 17 Plaintiff had until December 26, 2019 to file an objection. To date, no objection to the R&R 18 has been filed. For this reason, and as explained below, the Court adopts the R&R and 19 will dismiss this case. 20 This Court “may accept, reject, or modify, in whole or in part, the findings or 21 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 22 timely objects to a magistrate judge’s report and recommendation, then the Court is 23 required to “make a de novo determination of those portions of the [report and 24 recommendation] to which objection is made.” Id. Where a party fails to object, however, 25 the court is not required to conduct “any review at all . . . of any issue that is not the 26 subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth 27 Circuit has recognized that a district court is not required to review a magistrate judge’s 1 Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review 2 employed by the district court when reviewing a report and recommendation to which no 3 objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. 4 Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that 5 district courts are not required to review “any issue that is not the subject of an objection.”). 6 Thus, if there is no objection to a magistrate judge’s recommendation, then the Court may 7 accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 8 1226 (accepting, without review, a magistrate judge’s recommendation to which no 9 objection was filed). 10 While Plaintiff has failed to object to Judge Cobb’s recommendation to deny 11 Plaintiff’s IFP application and dismiss this case, the Court will conduct a de novo review 12 to determine whether to adopt the R&R. Judge Cobb found that Judge Mahan previously 13 deemed Plaintiff a vexatious litigant, requiring him to obtain leave from the Chief Judge 14 before filing any new case—but he did not do so here—so his case must be dismissed. 15 (ECF No. 3.) Having reviewed the R&R and the Complaint, the Court agrees with Judge 16 Cobb. 17 It is therefore ordered that Judge Cobb’s Report and Recommendation (ECF No. 18 3) is accepted and adopted in full. 19 It is further ordered that Plaintiff’s application to proceed in forma pauperis (ECF 20 No. 1) is denied. 21 It is further ordered this case is dismissed in its entirety. 22 The Clerk of Court is directed to enter judgment in accordance with this order and 23 close this case. 24 DATED THIS 27th day of December 2019. 25 26 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 27