Opinion
4:22-cv-00007-SLG-KFR
08-16-2022
STANLEY E. SMITH, Plaintiff, v. JUDGE TERRENCE HASS, et al., Defendants.
ORDER RE SCREENING ORDER AND REPORT AND RECOMMENDATION REGARDING COMPLAINT
SHARON L. GLEASO, UNITED STATES DISTRICT JUDGE
Before the Court at Docket 1 is Plaintiff Stanley E. Smith's Prisoner's Complaint under the Civil Rights Act, 42 U.S.C. § 1983, and Mr. Smith's Prisoner's Application to Waive Prepayment of the Filing Fee at Docket 3. Mr. Smith subsequently filed an untitled motion that requests counsel, his release from custody, and to have his charges dismissed at Docket 5, and a Motion to Amend his Complaint at Docket 6. These matters were referred to the Honorable Magistrate Judge Kyle F. Reardon. At Docket 8, Judge Reardon issued a Screening Order and Report and Recommendation Regarding Complaint in which he recommended that this action be dismissed with prejudice because the complaint failed to state a claim upon which relief may be granted and the futility of amendment, that all pending motions be denied as moot, and that a dismissal under these circumstances should be a strike as required by 28 U.S.C. § 1915(g) and Lomax v. Ortiz-Marquez, et al. 590 U.S., 140 S.Ct. 172 (2020). No objections to the Screening Order and Report and Recommendation Regarding Complaint were filed.
28 U.S.C. § 1915(g) prohibits a prisoner who files more than three actions or appeals in any federal court in the United States which are dismissed as frivolous or malicious or for failure to state a claim upon which relief may be granted, from bringing any other actions without prepayment of fees unless the prisoner can demonstrate that he or she is in “immediate danger of serious physical injury.”
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That statute provides that a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” A court is to “make a de novo determination of those portions of the magistrate judge's report or specified proposed findings or recommendations to which objection is made.”However, § 636(b)(1) does not “require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”
Id.
Thomas v. Arn, 474 U.S. 140, 150 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
The Court has reviewed the Screening Order and Report and Recommendation Regarding Complaint and agrees with its analysis. Accordingly, the Court adopts the Report and Recommendation Regarding Complaint in its entirety, and IT IS ORDERED that this action is DISMISSED WITH PREJUDICE for failing to state a claim upon which relief may be granted and the futility of amendment. The application to waive prepayment of the filing fee at Docket 3, the untitled motion at Docket 5, and the motion to amend the complaint at Docket 6 are each DENIED AS MOOT. This dismissal shall be counted as a STRIKE as required by 28 U.S.C. § 1915(g) and Lomax v. Ortiz-Marquez, et al. 590 U.S. ___, 140 S.Ct. 172 (2020).
The Clerk of Court shall enter a final judgment accordingly.