Bell v. Bennett

• Court: District Court, W.D. Washington
• Decided: September 13, 2024
• Docket: 2:24-cv-01204
• Status: Unknown

Opinion

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3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 WARREN E. BELL, JR., CASE NO. 2:24-cv-01204-JNW 8 Petitioner, ORDER OVERRULING OBJECTIONS, 9 AND ADOPTING REPORT AND v. RECOMMENDATION 10 JASON BENNETT, Superintendent, 11 Stafford Creek Corrections Center,

12 Respondent. 13 14 The Court considers the Report and Recommendation (“R&R”) of United 15 Magistrate Judge Brian A. Tsuchida, Dkt. No. 4, and Petitioner Warren Bell’s 16 objections to the R&R, Dkt. No. 5. The R&R recommends denying Bell’s application 17 to proceed in forma pauperis (“IFP”) because Bell has sufficient funds to pay the 18 $5.00 filing fee for his federal habeas petition. Bell has submitted nine, timely 19 objections to the R&R. For the reasons below, the Court OVERRULES Bell’s 20 objections, Dkt. No. 5, and ADOPTS the R&R, Dkt. No. 4. 21 1. RULINGS ON BELL’S OBJECTIONS 22 Federal Rule of Civil Procedure 72 allows a party to file written objections to 23 an R&R within fourteen days. Fed. R. Civ. P. 72(b)(2). The objections must be 1 “specific” and relate “to the [R&R’s] proposed findings and recommendations.” Id. 2 “The district judge must determine de novo any part of the magistrate judge’s

3 disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). 4 Objection Nos. 1–2: Overruled. 5 Bell vaguely objects to the “entire” R&R. Dkt. No. 5 at 1. He also maintains 6 that the R&R “failed to apply 28 U.S.C. § 1915.” Dkt. No. 5 at 1. Given the Court’s 7 duty to construe pro se pleadings liberally, see Erickson v. Pardus, 551 U.S. 89, 94 8 (2007), the Court construes these objections, together, as a challenge to Judge

9 Tsuchida’s IFP determination and reviews Judge Tsuchida’s IFP determination de 10 novo. See Fed. R. Civ. P. 72(b)(3). 11 After considering Bell’s IFP application, the remainder of the record, and the 12 law, the Court finds that Bell can pay the $5.00 filing fee for his federal habeas 13 petition. See Dkt. No. 1-9 (prisoner trust account showing $150.00 as “Average 14 Monthly Receipts”). Thus, under Section 1915, Bell must pay the filing fee. 28 15 U.S.C. § 1915(b)(1), (4).

16 Objection Nos. 3–9: Overruled. 17 On review of Objection Nos. 3–9, the Court concludes that they cannot be 18 construed as “proper objections” to the R&R, Dkt. No. 4. The objections are as 19 follows: 20 • The R&R “failed to address Petitioner’s Request for Certification in the 28 U.S.C. § 2241.” Dkt. No. 5 at 1. 21 • The R&R “failed to address Petitioner’s Affidavit in Support of 28 22 U.S.C. § 2241.” Id.

23 1 • The R&R “failed to take Judicial Notice pursuant to mandatory provision of section (b) nor was Petitioner allowed to be heard 2 pursuant to section (e). Id. at 2 (citing “ER 201”).

3 • The R&R “failed to order the respondent to produce a certified copy of the Arrest Warrant, which is necessary for claimed adjudication.” 4 Id. (citing Brady v. Maryland, 373 U.S. 83 (1963)).

5 • The R&R “failed to consider whether or an evidentiary hearing would benefit a merits resolution, or Petitioner’s right to contest 6 factual disputes and expand the record. Id. (citing Townsend v. Sain, 372 U.S. 293 (1963) and Cullen v. Pinholster, 563 U.S. 170, 181–82 7 (2011)).

8 • The R&R “asserts a [p]rocedural [d]efense without any party asserting the defense.” Id. (citing Trest v. Cain, 522 US. 87, 88 (1977) 9 and O’Neal v. McAninch, 513 U.S. 432, 437–444 (1995) (Cook quotes the phrase, “defendant bears the risk of equipoise”)). 10 • The R&R “recharacterizes the Petitioner from a 28 U.S.C. § 2241 to 11 a 28 U.S.C. § 2254.” Id.

12 These objections appear to be form objections that Bell intends to file in the 13 event that Judge Tsuchida recommends dismissal of Bell’s habeas petition down the 14 road. As Bell’s arguments do not address the substance of the R&R whatsoever, the 15 Court does not consider them to be proper objections to the R&R—much less 16 “specific” objections to “proposed findings and recommendations.” Fed. R. Civ. P. 17 72(b), (3). In any event, the Court has already reviewed the R&R on Bell’s IFP 18 application de novo and agrees with its conclusion. Neither the law nor the 19 information presented in Objection Nos. 3–9 requires the Court to find otherwise. 20 2. ORDER 21 Having reviewed, de novo, the Report and Recommendation of the assigned 22 United States Magistrate Judge, the objections, and the record, the Court ORDERS: 23 1 • The Court ADOPTS the Report and Recommendation, Dkt. No. 4, and 2 DENIES Petitioner’s application to proceed in forma pauperis.

3 • Petitioner’s deadline to pay the filing fee is September 27, 2024. If the 4 filing fee is not paid, the Court will consider this case dismissed without 5 prejudice and direct the Clerk of the Court to close it. 6 • The Clerk of the Court is DIRECTED to provide a copy of this Order to 7 Petitioner. 8 Dated this 13th day of September, 2024.

9 10 A 11 Jamal N. Whitehead United States District Judge 12 13 14 15 16 17 18 19 20 21

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