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Botha v. United States

United States District Court, D. Nevada

January 29, 2015

EDMUND C. BOTHA, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

ORDER

RICHARD F. BOULWARE, II, District Judge.

Before the Court for consideration are the Report and Recommendation of the Honorable Peggy A. Leen, United States Magistrate Judge, entered September 5, 2014 and a Motion to Dismiss filed by Defendant United States of America. Order and Report of Findings and Recommendation ("Rep. & Rec."), Sept. 5, 2014, ECF No. 4; Mot. Dismiss, ECF No. 12. Judge Leen screened Plaintiff Edmund Botha's complaint and ordered that it be filed and that Plaintiff's in forma pauperis application be granted. Rep. & Rec. at 5. Judge Leen also recommended dismissal of Plaintiff's claims against the Department of Justice, the Federal Bureau of Prisons, and FCI Terminal Island, as well as dismissal of Plaintiff's negligent hiring, retention and training claims, for lack of subject matter jurisdiction. Id. at 6. Defendant's Motion to Dismiss seeks relief identical to that recommended by Judge Leen. Mot. Dismiss at 10.

I. REPORT AND RECOMMENDATION

A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). A party may file specific written objections to the findings and recommendations of a magistrate judge. 28 U.S.C. § 636(b)(1); Local Rule IB 3-2(a). When written objections have been filed, the district court is required to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also Local Rule IB 3-2(b). Where a party fails to object, however, a district court is not required to conduct "any review, " de novo or otherwise, of the report and recommendations of a magistrate judge. Thomas v. Arn, 474 U.S. 140, 149 (1985).

Plaintiff's objections to the Report and Recommendation were due by September 22, 2014. No objections were filed by that date. The Court has reviewed the record in this case and concurs with the Magistrate Judge's recommendation that all of Plaintiff's claims against the Department of Justice, the Federal Bureau of Prisons, and FCI Terminal Island be dismissed for lack of subject matter jurisdiction. The Court also concurs with the recommendation that Plaintiff's negligent hiring, retention, and training claims be dismissed for lack of subject matter jurisdiction. The Court therefore adopts the Report and Recommendation in full and dismisses these claims with prejudice.

II. MOTION TO DISMISS

In its Motion to Dismiss, Defendant United States of America argues that Plaintiff's negligent hiring, retention, and training claims are barred by the discretionary function exception to the Federal Tort Claims Act ("FTCA") and that Plaintiff's claims against the Department of Justice and Federal Bureau of Prisons at FCI Terminal Island[1] should be dismissed because only the United States is a proper party in a FTCA case. Mot. Dismiss at 1.

Defendant's motion requests the exact relief recommended by Judge Leen. Therefore, the Court's adoption of Judge Leen's Report and Recommendation renders the Motion to Dismiss moot. Additionally, Plaintiff's deadline to respond to the Motion to Dismiss was January 3, 2015. Plaintiff has not filed any response to the motion, which would constitute consent to the granting of the motion under the Local Rules for this district. LR II 7-2(d).

III. CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 4) is ACCEPTED and ADOPTED in full.

IT IS FURTHER ORDERED that all claims against Defendants Department of Justice, Federal Bureau of Prisons, and FCI Terminal Island are DISMISSED.

IT IS FURTHER ORDERED that Plaintiff's negligent hiring, retention, and supervision claims are DISMISSED with prejudice.

IT IS FURTHER ORDERED that Defendant United States of America's Motion to Dismiss (ECF No. 12) is DENIED as moot.


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