Opinion
5:23-cv-02542-SSS-AJR
03-18-2024
ERIC LAMONT JOHNSON, Plaintiff, v. JAMES B. HICKS, Defendant.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
HON. SUNSHINE SUZANNE SYKES UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Complaint, all the records and files herein, the Report and Recommendation of the United States Magistrate Judge, and Plaintiff's Objection to the Report and Recommendation.
The Report and Recommendation (“Report”) recommends dismissal of the First Amended Complaint without further leave to amend and dismissal of the action with prejudice. [Dkt. 15]. Specifically, the Report finds that the First Amended Complaint fails to state a claim under Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), and that further amendment would be futile. [Id.] As stated below, Plaintiff's objections to the Report, [Dkt. 18], do not warrant a change to the Magistrate Judge's findings or recommendations.
Plaintiff objects that he filed his claim under 42 U.S.C. § 1983, not Bivens. [Dkt. 18 at 1]. This objection overlooks the Report's correct finding that Plaintiff has no cause of action under 42 U.S.C. § 1983 because the sole Defendant is a federal official. [Dkt. 15 at 2 n.1].
Plaintiff objects that the Magistrate Judge refused to allow him to serve the Defendant. [Dkt. 18 at 1]. This objection overlooks the Report's correct recognition that federal courts have the authority to dismiss an action, such as this action, before service, for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). [Dkt. 15 at 3].
Plaintiff objects that the Magistrate Judge issued proposed findings and that he did not consent to the Magistrate Judge's jurisdiction. [Dkt. 18 at 2]. But the Magistrate Judge's Report was authorized by the Federal Magistrates Act, 28 U.S.C. § 636. The undersigned District Judge subsequently has made “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)(C). “In providing for a de novo determination . . . Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations.” United States v. Raddatz, 447 U.S. 667, 676 (1980) (internal quotation marks omitted). Accordingly, the Court accepts and adopts the findings, conclusions, and recommendations of the Magistrate Judge.
IT IS ORDERED that this action is DISMISSED with prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order on Plaintiff at his current address of record and on counsel for the defendants who have appeared.