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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Jose Alfredo Garcia-Felician,

Petitioner, 

v. 

Jefferson B Sessions, III, et al., 

Respondents.

No. CV-18-00827-PHX-JAT

ORDER 

 Pending before the Court is the Report and Recommendation (“R&R) from the 

Magistrate Judge to whom this case was assigned, recommending that the Petition and 

request for injunctive relief in this case both be denied. (Doc. 14). Neither party filed 

objections to the R&R. 

This Court “may accept, reject, or modify, in whole or in part, the findings or 

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 

the district judge must review the magistrate judge’s findings and recommendations de 

novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 

1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 

F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that 

de novo review of factual and legal issues is required if objections are made, ‘but not 

otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 

1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 

[Magistrate Judge=s] recommendations to which the parties object.”). District courts are 
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not required to conduct “any review at all . . . of any issue that is not the subject of an 

objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. 

' 636(b)(1) (“the court shall make a de novo determination of those portions of the [report 

and recommendation] to which objection is made.”). 

 Because neither party objected, 

IT IS ORDERED that the R&R (Doc. 14) is accepted. The Petition and request 

for injunctive relief (Doc. 1) is denied. This case is dismissed for lack of jurisdiction, with 

prejudice,1

 and the Clerk of the Court shall enter judgment accordingly.2

 Dated this 12th day of February, 2019. 

 

1

 The R&R recommends that the dismissal be with prejudice (Doc. 14 at 8). As indicated 

above, neither party objected. Typically, when a case is dismissed for lack of jurisdiction, such dismissal is without prejudice. See generally Paz v. United States Citizenship & 

Immigration Services, CV 12-1807 DSF (CWX), 2012 WL 12896200, at *1 (C.D. Cal. 

Mar. 22, 2012) (dismissing without prejudice so petitioner could file in the appropriate court of appeals). However, a dismissal for lack of jurisdiction should be with prejudice if there is no way to cure the jurisdictional defect in district court. Mackenzie v. Holder, ED 

CV 13-08217-VBF, 2013 WL 8291434, at *5 (C.D. Cal. Nov. 27, 2013). Here, there is no 

way to cure the jurisdictional defect in district court, but this Court did not reach the merits 

of the case such that Petitioner should be barred from pursuing his claims in the appropriate court of appeals. Thus, this Court clarifies that this with prejudice dismissal is on the sole issue decided by this Court, which is whether it has jurisdiction. See Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) (“When the Rooker–Feldman doctrine 

applies, there is only one proper disposition: dismissal for lack of federal jurisdiction. A jurisdictional disposition is conclusive on the jurisdictional question: the plaintiff cannot re-file in federal court. But it is without prejudice on the merits, which are open to review in state court to the extent the state’s law of preclusion permits.”) 

2

 Because this case was filed pursuant to 28 U.S.C. § 2241, no certificate of appealability is required to appeal. See Forde v. U.S. Parole Comm'n, 114 F.3d 878, 879 (9th Cir. 1997).