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Heizelman v. Parker

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO


April 8, 2010

ROBERT HEIZELMAN, PLAINTIFF,
v.
CORRECTIONAL OFFICER PARKER, CORRECTIONAL OFFICER ROMRIELL, DEFENDANTS.

The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

On June 8, 2009, United States Magistrate Judge Larry M. Boyle issued a Memorandum Decision and Order which by Order (Docket No. 37) shall be construed as a Report and Recommendation (Docket No. 31) in this matter. Pursuant to 28 U.S.C. § 636(b)(1), the parties had fourteen days in which to file written objections to the Report and Recommendation. No objections were filed by the parties.

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge." Moreover, this Court "shall make a de novo determination of those portions of the report which objection is made." Id. In United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted the requirements of 28 U.S.C. 636(b)(1)(C):

The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise. As the Peretz Court instructed, "to the extent de novo review is required to satisfy Article III concerns, it need not be exercised unless requested by the parties." Peretz, 501 U.S. at 939, 111 S.Ct. 2661 (internal citation omitted). Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251 ("Absent an objection or request for review by the defendant, the district court was not required to engage in any more formal review of the plea proceeding."); see also Peretz, 501 U.S. at 937-39, 111 S.Ct. 2661 (clarifying that de novo review not required for Article III purposes unless requested by the parties) . . . .

See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). In this case, no objections were filed so the Court need not conduct a de novo determination of the Report and Recommendation.

THEREFORE, IT IS HEREBY ORDERED that the Report and Recommendation (Docket No. 31) shall be INCORPORATED by reference and ADOPTED in its entirety.

IT IS THEREFORE ORDERED that Defendants' Motion to Dismiss Re: Failure to Exhaust Administrative Remedies (Docket No. 26) is GRANTED and the case will be dismissed without prejudice.

IT IS FURTHER ORDERED that Defendants' Partial Motion to Dismiss (Docket No. 18) is dismissed as MOOT.

20100408

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