Barber v. Bremerton Police Department

Opinion

UNITED STATES DISTRICT COURT AT TACOMA DANNY JOE BARBER III, CASE NO. C24-5618 BHS Plaintiff, ORDER v. DEPARTMENT, Defendant.

THIS MATTER is before the Court on Magistrate Judge David W. Christel’s Report and Recommendation (R&R), Dkt. 9, recommending that the Court dismiss pro se prisoner plaintiff Danny Barber’s § 1983 complaint against the Bremerton Police Department for failure to state a plausible claim and for failure to prosecute this action. Judge Christel granted Barber’s application to proceed in forma pauperis, Dkt. 4, but declined to serve it and ordered Barber to show cause why it should not be dismissed as facially barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994). Dkt. 6. Barber re-filed his complaint, Dkt. 7, and Judge Christel again ordered him to show cause by October 17, 2024, why it should not be dismissed, and why the dismissal should not count as a “strike” under 28 U.S.C. § 1915(g). Dkt. 8. Barber did not respond, and he did not amend his complaint.

The R&R recommends that the Court dismiss the case without prejudice for failure to state a plausible claim, as barred by Heck, for failure to comply with the Court’s orders, and for failure to prosecute. Dkt. 9. A district court “shall make a de novo determination of those portions of the report or specified proposed finding or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C) (emphasis added); accord Fed. R. Civ. P. 72(b)(3). It must modify

or set aside any portion of the order that is clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a) (emphasis added). The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). A 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). A proper objection requires specific written objections to the proposed findings and recommendations in the R&R. Fed. R. Civ. P. 72(b)(2). Barber has not objected to the R&R and its conclusions and recommendations, and they are not clearly erroneous or contrary to law. Rule 72(a).

The R&R is therefore ADOPTED. Barber’s complaint is DISMISSED without prejudice and without leave to amend. Barber’s in forma pauperis status is REVOKED, and this dismissal of his proposed complaint is a “STRIKE” under 28 U.S.C. § 1915(g). The Clerk shall enter a JUDGMENT and close the case. Dated this 22nd day of November, 2024. A BENJAMIN H. SETTLE United States District Judge