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Nasr v. Larocca

United States District Court, C.D. California

July 11, 2016

MR. ANTOINE ELIAS NASR, Petitioner,
v.
STEVEN LAROCCA -Assistant Field Office Director, Respondent.

         Adopting the Report & Recommendation: Dismissing Grounds 1 & 2 Without Prejudice Denying & Dismissing Ground 3 With Prejud. Directing Entry of Separate Judgment Terminating & Closing the Case (JS-6)

          ORDER

          Valerie Baker Fairbank Senior United States District Judge.

         This is an action for a Writ of Habeas Corpus by a Person in Federal Custody Pursuant to 28 U.S.C. section 2241. Pursuant to his authority under Fed.R.Civ.P. 72(b)(1), title 28 U.S.C. section 636(b)(1)(B), and C.D. Cal. Local Civil Rule 72-3.3, United States Magistrate Judge Eick issued a Report and Recommendation ("R&R") on June 1, 2016. See Case Management / Electronic Case Filing System Document ("Doc") Doc 1.

         Pursuant to 28 U.S.C. § 636(b)(1), the Court has reviewed the habeas corpus petition (Doc 1); the respondents' Return to the petition (Doc 6); the Immigration Judge's March 9, 2016 Removal Order (Doc 6-1); the Board of Immigration Appeals's June 2, 2016 Final Removal Order (Doc 6-2); the two-page Declaration of USICE Deportation Officer Christopher Mendivil executed April 6, 2016 (Doc 6-3); petitioner Nasr's reply (Doc 8), the respondents' Supplemental Return filed May 19, 2016 (Doc 10), the two-page Declaration of Mendivil executed May 18, 2016 (Doc 10-1), the R&R (Doc 12), and the applicable law.

         Petitioner has not filed written objections to the R&R within the time allotted by our Local Civil Rule 72-3.4[1], nor has he sought an extension of the objection deadline. Accordingly, the Court proceeds to the R&R without waiting further.

         By its terms, Federal Rule of Civil Procedure 72(b)(3) requires a District Judge to conduct de novo review only of those portions of an R&R to which a party has filed timely specific objection. See Rael v. Foulk, No. LA CV 14-02987 Doc. 47, 2015 WL 4111295, *1 (C.D. Cal. July 7, 2015) (Fairbank, J.) ("As required by Fed.R.Civ.P. 72(b)(3), the Court has engaged in de novo review of the portions of the R&R to which petitioner has specifically objected . . . ."), COA denied, No. LA CV 14-02987 Doc. 53, Appeal No. 15-56205 (9th Cir. Feb. 18, 2016).

         Conversely, the Ninth Circuit has held that absent a timely objection purporting to identify specific defects in the R&R, the District Judge has no obligation to review the R&R at all. See Beard v. Nooth, 2013 WL 3934188, *1 (D. Or. July 30, 2013) ("For those portions of a magistrate's findings and recommendations to which neither party has objected, the [Federal Magistrates] Act does not prescribe any standard of review.") (citing Thomas v. Arn, 474 U.S. 140, 152, 106 S.Ct. 466, 473 (1985) ("There is no indication that Congress, in enacting [the Federal Magistrates Act], intended to require a district judge to review a magistrate's report.[.]") and United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9thCir. 2003) (en banc) (district judge must review a magistrate's findings and recommendations de novo if objections are made, "but not otherwise")); see, e.g., Herring v. Maricopa County Sheriff's Office, 2016 WL 2754851, *1 (D. Ariz. May 12, 2016) (Campbell, J.) ("No objection has been filed, which relieves the Court of its obligation to review the R&R.") (citing, inter alia, Reyna-Tapia, 328 F.3d at 1121, and Thomas, 474 U.S. at 149); Hussak v. Ryan, 2016 WL 2606993, *1 (D. Ariz. May 6, 2016) (Rayes, J.) (same).[2]

         "Nonetheless, the Magistrates Act does not preclude a district judge from reviewing an R&R to make sure that it recommends a legally permissible and appropriate outcome (based on sound reasoning and valid precedent) if she chooses to do so." Juarez v. Katavich, 2016 WL 2908238, *2 (C.D. Cal. May 17, 2016) (Fairbank, J.) (citing Beard, 2013 WL 3934188 at *1 (although no review is required in the absence of objections, the Magistrates Act "‘does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard") (quoting Thomas, 474 U.S. at 154)). "Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that [w]hen no timely objection is filed, the Court review the magistrate's recommendations for clear error on the face of the record." Juarez, 2016 WL 2908238 at *2 (citation omitted).

         Out of an abundance of caution, then, the Court has reviewed the R&R. On either clear-error or de novo review, the Court finds no defect of law, fact, or logic in the R&R. Therefore the Court will adopt the R&R and implement its recommendations.

         ORDER

         The following three individuals are TERMINATED as parties respondent:

Loretta Lynch - United States Attorney General
Jeh Johnson - Secretary of United States Department of Homeland Security
"Mr. Jorge Field (US ICE Field Office Director for the Theo Lacy ...

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