Opinion
Case No. 3:17-cv-00464-MMD-VPC
03-28-2018
CORNELIUS BROWN, Plaintiff, v. JULIE MARSCHNER, Defendant.
ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE VALERIE P. COOKE
Before the Court is the Report and Recommendation of United States Magistrate Judge Valerie P. Cooke (ECF No. 3) ("R&R") relating to plaintiff's application to proceed in forma pauperis ("IFP Application") (ECF No. 1) and pro se complaint (ECF No. 1-1). Plaintiff filed his objection on February 23, 2018 ("Objection"). (ECF No. 4.)
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). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). Where a party fails to object, however, the court is 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). Indeed, the Ninth Circuit has recognized that a district court is not required to review a magistrate judge's report and recommendation where no objections have been filed. See United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by the district court when reviewing a report and recommendation to which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth Circuit's decision in Reyna-Tapia as adopting the view that district courts are not required to review "any issue that is not the subject of an objection."). Thus, if there is no objection to a magistrate judge's recommendation, then the court may accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226 (accepting, without review, a magistrate judge's recommendation to which no objection was filed).
The Magistrate Judge recommends granting Plaintiff's IFP Application. Plaintiff does not object to this recommendation. Accordingly, the Court will accept the recommendation.
The Magistrate Judge recommends dismissing the complaint with prejudice because Plaintiff's claims arise from his criminal trial, such as the alleged conduct of Defendant Julie Marschner, the forensic scientist who tesifited at his trial, and the alleged errors of the trial judge, and are therefore barred under Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff's objection recounts issues in his criminal trial and states that he has had other difficulties in bringing claims because of his pro se status. (ECF No. 4.) However, these issues do not address the Magistrate Judge's recommendation. Plaintiff cannot pursue his clams under 42 U.S.C. 1983 until he has succesffully challenge his underlying criminal convictions.
It is therefore ordered, adjudged and decreed that the Report and Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 3) is accepted and adopted in its entirety.
It is ordered that plaintiff's application to proceed in forma pauperis (ECF No. 1) without having to prepay the full filing fee is granted.
It is further ordered that the Clerk detach and file the complaint (ECF No. 1-1).
It is further ordered that the complaint (ECF No. 1-1) is dismissed without prejudice, without leave to amend.
It is further ordered that the Clerk enter judgment and close this case.
DATED THIS 28th day of March 2018.
/s/_________
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE