4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 JUSTIN ODELL LANGFORD, Case No. 3:19-cv-00326-MMD-CBC 8 Plaintiff, ORDER 9 v.
10 WILLIAM G. COBB,
11 Defendant. 12 13 Plaintiff Justin Odell Langford, who is in the custody of the Nevada Department of 14 Corrections (“NDOC”), brings this action under 42 U.S.C. § 1983 against Magistrate 15 Judge William G. Cobb for using Plaintiff’s name in two screening orders in another case, 16 which he contends violated his constitutional rights. (ECF No. 1-1 at 1, 4; see also ECF 17 No. 5 at 5-6.) Plaintiff also submits an application to proceed in forma pauperis (“IFP 18 Application”). (ECF No. 1.) Before the Court is the Report and Recommendation (“R&R” 19 or “Recommendation”) of United States Magistrate Judge Carla B. Carry (ECF No. 4) 20 recommending that the Court grant the IFP Application, dismiss the proposed Complaint, 21 assess a strike under 28 U.S.C. § 1915(g), and deny Plaintiff’s motion for summary 22 judgment as moot. Plaintiff filed an objection. (ECF No. 5.) The Court overrules Plaintiff’s 23 objection and adopts the R&R in full. 24 This Court “may accept, reject, or modify, in whole or in part, the findings or 25 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 26 timely objects to a magistrate judge’s report and recommendation, then the Court is 27 required to “make a de novo determination of those portions of the [report and 1 the court is not required to conduct “any review at all . . . of any issue that is not the 2 subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth 3 Circuit has recognized that a district court is not required to review a magistrate judge’s 4 report and recommendation where no objections have been filed. See United States v. 5 Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review 6 employed by the district court when reviewing a report and recommendation to which no 7 objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. 8 Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that 9 district courts are not required to review “any issue that is not the subject of an objection.”). 10 Thus, if there is no objection to a magistrate judge’s recommendation, then the Court may 11 accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 12 1226 (accepting, without review, a magistrate judge’s recommendation to which no 13 objection was filed). 14 The Court agrees with Judge Carry that Plaintiff’s IFP Application should be 15 granted because he has shown that he cannot pay the filing fee. (ECF No. 4 at 2.) Plaintiff 16 objects to Judge Carry’s recommendation on the ground that the IFP Application is a 17 contract “entered into based upon fraud.” (ECF No. 5 at 5.) The fraud Plaintiff identifies 18 relates to his belief that paper currency is a debt and that “debt can’t pay debt.” (Id. at 5- 19 6.) Regardless of Plaintiff’s beliefs, his Complaint cannot be filed unless he pays the $350 20 filing fee, 28 U.S.C. § 1914, or submits an IFP Application seeking court authorization to 21 commence a suit without prepayment of fees, see id. § 1915. Plaintiff submitted an IFP 22 Application that shows he cannot pay the $350 filing fee. (ECF No. 1.) Accordingly, 23 Plaintiff’s objection is overruled. 24 Moreover, the Court agrees with Judge Carry that the Complaint should be 25 dismissed for failure to state a claim. First, Defendant Judge Cobb is entitled to judicial 26 immunity. (ECF No. 4 at 3-4.) Plaintiff objects that immunity does not apply here (ECF 27 No. 5 at 4-5), but his argument is unpersuasive. Moreover, Plaintiff’s Complaint lacks a 28 legal cause of action. Plaintiff alleges violations of his constitutional rights (ECF No. 1-1 1 at 2) but contends he is not bringing his lawsuit under 42 U.S.C. § 1983 (ECF No. 5 at 2). 2 Indeed, Plaintiff’s Complaint does not allege a cause of action under § 1983. (ECF No. 1- 3 1 at 2.) Furthermore, § 1983 is the exclusive remedy for the constitutional deprivations 4 Plaintiff alleges in the Complaint. 5 The Court also agrees with Judge Carry in assessing a strike under 28 U.S.C. § 6 1915(g) based on Plaintiff’s failure to state a claim.1 (ECF No. 4 at 4.) Plaintiff fails to state 7 a claim because he has not identified a cause of action and because Judge Cobb is 8 entitled to judicial immunity. While judicial immunity is an affirmative defense, see 9 Hiramanek v. Clark, No. C-13-0228 EMC, 2014 WL 107634, at *7 (N.D. Cal. Jan. 10, 10 2014), that affirmative defense appears on the face of the Complaint. Plaintiff identifies 11 Judge Cobb as a United States Magistrate Judge and explains that his Complaint arises 12 from Judge Cobb’s judicial orders. (See ECF No. 1-1 at 2-3.) Thus, it is appropriate to 13 assess a strike. See El-Shaddai v. Zamora, 833 F.3d 1036, 1044 (9th Cir. 2016). 14 It is therefore ordered that Judge Carry’s Report and Recommendation (ECF No. 15 4) is adopted in full. 16 It is further ordered that Plaintiff's application to proceed in forma pauperis (ECF 17 No. 1) without having to prepay the full filing fee is granted. The Clerk of Court is instructed 18 to file the Complaint. (ECF No. 1-1). Plaintiff will not be required to pay an initial 19 installment fee. Nevertheless, the full filing fee will still be due, pursuant to 28 U.S.C. § 20 1915, as amended by the Prisoner Litigation Reform Act. Plaintiff is permitted to maintain 21 this action to conclusion without the necessity of prepayment of fees or costs or the giving 22 of security therefor. This order granting in forma pauperis status will not extend to the 23 issuance and/or service of subpoenas at government expense.
24 1Plaintiff objects that he has filed a “regular civil suit,” not a § 1983 action, and 25 therefore his Complaint should not have been screened by Judge Carry and cannot be assessed a strike. (ECF No. 5 at 2, 8.) This objection is unpersuasive because Plaintiff 26 has no way of advancing his constitutional claims except through 42 U.S.C. § 1983. (See ECF No. 1-1 at 2 (alleging violations of constitutional rights).) Moreover, the Court is 27 required to screen Plaintiff’s Complaint under 28 U.S.C. § 1915(a)(1) because he is seeking in forma pauperis status. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 28 2000). 1 It is further ordered that, pursuant to 28 U.S.C. § 1915
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4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 JUSTIN ODELL LANGFORD, Case No. 3:19-cv-00326-MMD-CBC 8 Plaintiff, ORDER 9 v.
10 WILLIAM G. COBB,
11 Defendant. 12 13 Plaintiff Justin Odell Langford, who is in the custody of the Nevada Department of 14 Corrections (“NDOC”), brings this action under 42 U.S.C. § 1983 against Magistrate 15 Judge William G. Cobb for using Plaintiff’s name in two screening orders in another case, 16 which he contends violated his constitutional rights. (ECF No. 1-1 at 1, 4; see also ECF 17 No. 5 at 5-6.) Plaintiff also submits an application to proceed in forma pauperis (“IFP 18 Application”). (ECF No. 1.) Before the Court is the Report and Recommendation (“R&R” 19 or “Recommendation”) of United States Magistrate Judge Carla B. Carry (ECF No. 4) 20 recommending that the Court grant the IFP Application, dismiss the proposed Complaint, 21 assess a strike under 28 U.S.C. § 1915(g), and deny Plaintiff’s motion for summary 22 judgment as moot. Plaintiff filed an objection. (ECF No. 5.) The Court overrules Plaintiff’s 23 objection and adopts the R&R in full. 24 This Court “may accept, reject, or modify, in whole or in part, the findings or 25 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 26 timely objects to a magistrate judge’s report and recommendation, then the Court is 27 required to “make a de novo determination of those portions of the [report and 1 the court is not required to conduct “any review at all . . . of any issue that is not the 2 subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth 3 Circuit has recognized that a district court is not required to review a magistrate judge’s 4 report and recommendation where no objections have been filed. See United States v. 5 Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review 6 employed by the district court when reviewing a report and recommendation to which no 7 objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. 8 Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that 9 district courts are not required to review “any issue that is not the subject of an objection.”). 10 Thus, if there is no objection to a magistrate judge’s recommendation, then the Court may 11 accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 12 1226 (accepting, without review, a magistrate judge’s recommendation to which no 13 objection was filed). 14 The Court agrees with Judge Carry that Plaintiff’s IFP Application should be 15 granted because he has shown that he cannot pay the filing fee. (ECF No. 4 at 2.) Plaintiff 16 objects to Judge Carry’s recommendation on the ground that the IFP Application is a 17 contract “entered into based upon fraud.” (ECF No. 5 at 5.) The fraud Plaintiff identifies 18 relates to his belief that paper currency is a debt and that “debt can’t pay debt.” (Id. at 5- 19 6.) Regardless of Plaintiff’s beliefs, his Complaint cannot be filed unless he pays the $350 20 filing fee, 28 U.S.C. § 1914, or submits an IFP Application seeking court authorization to 21 commence a suit without prepayment of fees, see id. § 1915. Plaintiff submitted an IFP 22 Application that shows he cannot pay the $350 filing fee. (ECF No. 1.) Accordingly, 23 Plaintiff’s objection is overruled. 24 Moreover, the Court agrees with Judge Carry that the Complaint should be 25 dismissed for failure to state a claim. First, Defendant Judge Cobb is entitled to judicial 26 immunity. (ECF No. 4 at 3-4.) Plaintiff objects that immunity does not apply here (ECF 27 No. 5 at 4-5), but his argument is unpersuasive. Moreover, Plaintiff’s Complaint lacks a 28 legal cause of action. Plaintiff alleges violations of his constitutional rights (ECF No. 1-1 1 at 2) but contends he is not bringing his lawsuit under 42 U.S.C. § 1983 (ECF No. 5 at 2). 2 Indeed, Plaintiff’s Complaint does not allege a cause of action under § 1983. (ECF No. 1- 3 1 at 2.) Furthermore, § 1983 is the exclusive remedy for the constitutional deprivations 4 Plaintiff alleges in the Complaint. 5 The Court also agrees with Judge Carry in assessing a strike under 28 U.S.C. § 6 1915(g) based on Plaintiff’s failure to state a claim.1 (ECF No. 4 at 4.) Plaintiff fails to state 7 a claim because he has not identified a cause of action and because Judge Cobb is 8 entitled to judicial immunity. While judicial immunity is an affirmative defense, see 9 Hiramanek v. Clark, No. C-13-0228 EMC, 2014 WL 107634, at *7 (N.D. Cal. Jan. 10, 10 2014), that affirmative defense appears on the face of the Complaint. Plaintiff identifies 11 Judge Cobb as a United States Magistrate Judge and explains that his Complaint arises 12 from Judge Cobb’s judicial orders. (See ECF No. 1-1 at 2-3.) Thus, it is appropriate to 13 assess a strike. See El-Shaddai v. Zamora, 833 F.3d 1036, 1044 (9th Cir. 2016). 14 It is therefore ordered that Judge Carry’s Report and Recommendation (ECF No. 15 4) is adopted in full. 16 It is further ordered that Plaintiff's application to proceed in forma pauperis (ECF 17 No. 1) without having to prepay the full filing fee is granted. The Clerk of Court is instructed 18 to file the Complaint. (ECF No. 1-1). Plaintiff will not be required to pay an initial 19 installment fee. Nevertheless, the full filing fee will still be due, pursuant to 28 U.S.C. § 20 1915, as amended by the Prisoner Litigation Reform Act. Plaintiff is permitted to maintain 21 this action to conclusion without the necessity of prepayment of fees or costs or the giving 22 of security therefor. This order granting in forma pauperis status will not extend to the 23 issuance and/or service of subpoenas at government expense.
24 1Plaintiff objects that he has filed a “regular civil suit,” not a § 1983 action, and 25 therefore his Complaint should not have been screened by Judge Carry and cannot be assessed a strike. (ECF No. 5 at 2, 8.) This objection is unpersuasive because Plaintiff 26 has no way of advancing his constitutional claims except through 42 U.S.C. § 1983. (See ECF No. 1-1 at 2 (alleging violations of constitutional rights).) Moreover, the Court is 27 required to screen Plaintiff’s Complaint under 28 U.S.C. § 1915(a)(1) because he is seeking in forma pauperis status. See Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 28 2000). 1 It is further ordered that, pursuant to 28 U.S.C. § 1915, as amended by the PLRA, 2 || the NDOC must pay to the Clerk of the United States District Court, District of Nevada, 3 || 20% of the preceding month's deposits to the account of Justin Odell Langford, #1159546 4 || (in months that the account exceeds $10.00) until the full $350 filing fee has been paid 5 || for this action. The Clerk is instructed to send a copy of this order to the attention of Chief 6 || of Inmate Services for the Nevada Department of Prisons, P.O. Box 7011, Carson City, 7 || NV 89702. 8 It is further ordered that, even though this action will be dismissed, the full filing fee 9 || will still be due, pursuant to 28 U.S.C. §1915, as amended by the PLRA. 10 It is further ordered that the Complaint (ECF No. 1-1) is dismissed for failure to 11 || state a claim. Plaintiff is also assessed a strike under 28 U.S.C. § 1915(g) based on that 12 || dismissal. 13 It is further ordered that Plaintiff's motion for summary judgment (ECF No. 3) is 14 || denied as moot. 15 This Court certifies that any in forma pauperis appeal from its order of dismissal 16 || would be frivolous or would not be taken "in good faith" pursuant to 28 U.S.C. § 17 || 1915(a)(3). 18 The Clerk of Court is directed to enter judgment in accordance with this order and 19 || close this case. 20 DATED THIS 27" day of September 2019. 21
53 CHIEF UNITED STATES DISTRICT JUDGE
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