Ismael v. 2nd Circuit Court of Appeals

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 ISMAEL PADILLA, ) 4 ) Plaintiff, ) Case No.: 2:23-cv-01511-GMN-BNW 5 vs. ) 6 ) ORDER ADOPTING SECOND CIRCUIT COURT OF APPEALS, ) REPORT AND RECOMMENDATION 7 et al., ) ) 8 Defendants. ) 9 Pending before the Court is the Order and Report and Recommendation (“R&R”), (ECF 10 No. 24), from United States Magistrate Judge Brenda Weksler, which recommends denying 11 Plaintiff’s Motion for Injunctive Relief, (ECF No. 23), because Plaintiff has not yet been 12 approved to proceed in forma pauperis, or paid the $405 filing fee. The Magistrate Judge must 13 review Plaintiff’s Complaint and approve his application to proceed in forma pauperis before 14 the Court can evaluate the merits of his Motion for Injunctive Relief. 15 A party may file specific written objections to the findings and recommendations of a 16 United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); 17 D. Nev. R. IB 3-2. Upon the filing of such objections, the Court must make a de novo 18 determination of those portions to which objections are made if the Magistrate Judge’s findings 19 and recommendations concern matters that may not be finally determined by a magistrate 20 judge. D. Nev. R. IB 3-2(b). The Court may accept, reject, or modify, in whole or in part, the 21 findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. R. 22 IB 3-2(b). Where a party fails to object, however, the Court is not required to conduct “any 23 review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 24 140, 149 (1985) (citing 28 U.S.C. § 636(b)(1)). Indeed, the Ninth Circuit has recognized that a 25 district court is not required to review a magistrate judge’s R&R where no objections have been 1 || filed. See, e.g., United States v. Reyna—Tapia, 328 F.3d 1114, 1122 (9th Cir. 2003). 2 The pro se Plaintiff filed a Motion to Reopen all prior Denied and Dismissed Motions, 3 || which the Court will liberally construe as an objection to the R&R. (See ECF No. 26). In her 4 || Report and Recommendation, the Magistrate Judge noted that before any other action can be 5 || taken in this case, Plaintiff must submit a complete action to proceed in forma pauperis, or pay 6 || the $405 filing fee. Plaintiff has submitted an amended Motion to Proceed Jn Forma Pauperis, 7 || (ECF No. 25), which will be reviewed by the Magistrate Judge in the normal course. 8 Plaintiff's Objection argues, among other things, that he was subject to an 9 || unconstitutional prosecution. However, before ruling on Plaintiff's Motion for Injunctive 10 || Relief, the Magistrate Judge must review Plaintiff's Complaint and Motion to Proceed Jn 11 || Forma Pauperis to determine whether his allegations state a claim for relief. A motion for 12 ||injunctive relief requires the Court to determine Plaintiff's likelihood of success on the merits 13 his claim. The Court therefore ADOPTS the Report and Recommendation and advises 14 || Plaintiff that his Motion may be refiled after his application to proceed in forma pauperis is 15 || approved, or he pays the filing fee. 16 17 || Accordingly, 18 IT IS HEREBY ORDERED that the Report and Recommendation, (ECF No. 24), is 19 || ACCEPTED and ADOPTED in full. 20 IT IS FURTHER ORDERED that Plaintiff's Motion for Injunctive Relief, (ECF No. 21 is DENIED without prejudice. 22 Dated this 8 day of May, 2024. 23 24 Gloria M} Navarro, District Judge 25 United States District Court

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