1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 EDWARD J. WILEY, ) 4 ) Plaintiff, ) Case No.: 2:23-cv-00141-GMN-EJY 5 vs. ) 6 ) ORDER LAS VEGAS POLICE, et al., ) 7 ) Defendants. ) 8 ) ) 9 10 Pending before the Court is the January 30, 2023, Report and Recommendation 11 (“R&R”), (ECF No. 4), of United States Magistrate Judge Elayna J. Youchah, which 12 recommends, among other things, (1) providing Plaintiff Edward J. Wiley (“Plaintiff”) an 13 opportunity to file an amended complaint that addresses the deficiencies noted in the R&R, and 14 (2) dismissing the case without prejudice if Plaintiff chooses not to file an amended complaint 15 by a deadline imposed by the Court. 16 Also pending before the Court is the May 9, 2023, R&R, (ECF No. 5), of Magistrate 17 Judge Youchah which recommends that this matter “be dismissed without prejudice for failure 18 to comply with the Court’s January 30, 2023 Order.” 19 When considering dispositive matters, “the magistrate judge may go no further than 20 issuing a report and recommendation to the district court[.]” See Bastidas v. Chappell,

(9th Cir. 2015). The district court reviews the magistrate judge’s recommendations 22 de novo.

The district court may accept, reject, or modify, in whole or in part, the findings or 23 recommendations made by the magistrate judge.

(b)(1); D. Nev. R. IB 3-2(b). 24 A party may file specific written objections to the findings and recommendations of the 25 magistrate judge pursuant to Local Rule IB 1-4.

(b)(1)(B); D. Nev. R. IB 3-2. 1 Where a party fails to object, however, the district court is not required to conduct “any review 2 at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn,

, 149 3 (1985) (citing

(b)(1)). Indeed, the Ninth Circuit has recognized that a district 4 judge is not required to review a magistrate judge’s report and recommendation where no 5 objections have been filed. See, e.g., United States v. Reyna–Tapia,

(9th 6 Cir. 2003). Neither party filed an objection to either the January 30, 2023, R&R or the May 9, 7 2023, R&R. 8 The January 30, 2023, R&R recommended that Plaintiff be given the opportunity to file 9 an amended complaint to address the deficiencies identified in the R&R, and further 10 recommended that Plaintiff be given until March 1, 2023, to submit an amended complaint. 11 (January 30, 2023, R&R 3:3–7, ECF No. 4). However, before this recommendation had been 12 adopted by the undersigned, the Magistrate Judge issued a second R&R on May 9, 2023, 13 recommending that the matter be dismissed “for failure to comply with the Court’s January 30, 14 2023 Order.” (May 9, 2023, R&R 1:19–20, ECF No. 5). Specifically, Magistrate Judge 15 Youchah found that Plaintiff failed to file an amended complaint by the March 1, 2023, 16 deadline. 17 A magistrate judge may—but is not required to—recommend that a party be provided an 18 opportunity to file an amended complaint curing any deficiencies in the original complaint 19 highlighted by the magistrate judge. Indeed, Magistrate Judge Youchah’s January 30, 2023, 20 Order notes that “it is further recommended that . . . Plaintiff be given one opportunity file an 21 amended complaint that addresses the deficiencies identified above.” (January 30, 2023, R&R 22 3:6–7). A recommendation, however, must be adopted by the district judge before the party is 23 required to comply with the recommendation. See also Anderson v. Nevada, No. 22-16856, 24

, at *1 (9th Cir. Apr. 26, 2023) (vacating and remanding order declaring 25 plaintiff a vexatious litigant by adopting in full magistrate judge’s recommendation without 1 first providing plaintiff an opportunity to show cause why he should not be deemed a vexatious 2 litigant). A plaintiff cannot be penalized for failing to follow a recommendation of a magistrate 3 judge that was not yet adopted by the district judge. The R&R issued in May incorrectly found 4 that Plaintiff failed to comply with the January R&R because the undersigned never adopted, 5 and therefore never ordered, Plaintiff to file an amended complaint by a certain date. The 6 Court thus REJECTS the May R&R recommending dismissal as premature. 7 Accordingly, 8 IT IS HEREBY ORDERED that the January 30, 2023, Report and Recommendation, 9 (ECF No. 4), is ADOPTED in full. 10 IT IS FURTHER ORDERED that Plaintiff shall have until July 28, 2023, to file an 11 amended complaint addressing the deficiencies noted in the January 30, 2023, Report and 12 Recommendation. Failure to file an amended complaint will result in the matter being 13 dismissed without prejudice. 14 IT IS FURTHER ORDERED that the May 9, 2023, Report and Recommendation 15 (ECF No. 5) is REJECTED. 16 Dated this _2__9_ day of June, 2023. 17 18 ___________________________________ Gloria M. Navarro, District Judge 19 United States District Court 20 21 22 23 24 25