Kone v. Andrew

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

TIDIANE KONE, Plaintiff, v. SHANTELL ANDREW, et al., Case No. 3:22-cv-00138-SLG-KFR Defendants.

ORDER RE REPORT AND RECOMMENDATION TO DISMISS Before the Court at Docket 10 is Plaintiff Tidiane Kone’s Prisoner’s Amended Complaint under the Civil Rights Act, 42 U.S.C. § 1983, a Motion for Leave to

Proceed In Forma Pauperis at Docket 3, a Second Motion for Leave to Proceed In Forma Pauperis at Docket 4, a Motion for Order to Show Cause at Docket 6, and a Motion for Enforcing a Judgment for a Specific Act at Docket 8. These matters were referred to the Honorable Magistrate Judge Kyle F. Reardon. At Docket 12 Judge Reardon issued a Report and Recommendation to Dismiss, in which he

recommended that this action be dismissed without prejudice for failing to state a claim upon which relief may granted, that all pending motions denied as moot, and that this dismissal count 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).1 No objections to the

1 28 U.S.C. § 1915(g) prohibits a prisoner who has filed more than three actions or appeals in any federal court in the United States that 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 Report and Recommendation to Dismiss were filed. However, at Docket 13, Mr. Kone filed a Motion for Constitutional Challenge to a Statute in this case, in which he identifies six new individuals as defendants, all of whom appear to be

employees of the Child Support Enforcement Division, and states that he now intends to procced without the two currently named defendants, Bernice Hernandez and Shantell Andrew. With respect to the newly filed motion at Docket 13, it is DENIED without prejudice. If Mr. Kone seeks to bring an action against these newly named

defendants, he must file a complaint against them and initiate a new case. He cannot maintain such an action in this case. With respect to the action that was brought against Bernice Hernandez and Shantell Andrew, that 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.”2 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.”3 However, § 636(b)(1) does not “require district court

physical injury.” 2 28 U.S.C. § 636(b)(1). 3 Id. Case No. 3:22-cv-00138-SLG-KFR, Kone v. Andrew, et al. review of a magistrate’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”4 The Court has reviewed the Report and Recommendation to Dismiss and

agrees with its analysis. Accordingly, the Court adopts the Report and Recommendation to Dismiss in its entirety, and IT IS ORDERED that this action is DISMISSED WITHOUT PREJUDICE for failing to state a claim upon which relief may be granted. All pending motions are DENIED AS MOOT. This dismissal shall 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). The Clerk of Court shall enter a final judgment accordingly. DATED this 13th day of October, 2022, at Anchorage, Alaska. /s/ Sharon L. Gleason UNITED STATES DISTRICT JUDGE

4 Thomas v. Arn, 474 U.S. 140, 150 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Case No. 3:22-cv-00138-SLG-KFR, Kone v. Andrew, et al.