Maurice Vaster v. Jason Bennett

Opinion

5 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 6 AT TACOMA

7 MAURICE VASTER, 8 CASE NO. 2:25-cv-1385-RSL Petitioner, 9 v. 10 JASON BENNETT, ORDER ADOPTING REPORT AND 11 RECOMMENDATION

Respondent. 12

13 This matter comes before the Court on petitioner’s objections (Dkt. 15) to the 14 15 Report and Recommendation of the Honorable Theresa L. Fricke, United States Magistrate 16 Judge (Dkt. 6). 17 On July 23, 2025, petitioner filed a proposed petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2241 and an application to proceed in forma pauperis (“IFP”). 19 20 Dkt. 1, 3. Petitioner’s IFP application included a prison trust account statement indicating 21 that he possessed sufficient funds to pay the $5.00 filing fee. Magistrate Judge Fricke 22 therefore issued an Order to Show Cause directing petitioner to either pay the filing fee or 23 demonstrate why he was unable to do so. Dkt. 4. Petitioner responded but neither paid the 24 25 fee nor explained his inability to do so. Instead, he asserted that Magistrate Judge Fricke 26 lacked jurisdiction over this matter. Dkt. 5. Magistrate Judge Fricke subsequently issued a ORDER ADOPTING REPORT AND 1 Report and Recommendation recommending that petitioner’s IFP application be denied 2 (the “October 2025 Report and Recommendation”). Dkt. 6. 3 Petitioner objected to the October 2025 Report and Recommendation, asserting that 4 5 he did not receive a complete copy. Dkt. 7. The document attached to petitioner’s 6 objections supported that assertion, as it appears that he had received only the first page of 7 the October 2025 Report and Recommendation. The Court therefore directed the Clerk to 8 resend the complete Report and Recommendation to petitioner and allowed petitioner to 9 10 file any objections on or before April 27, 2026. Dkt. 8. Petitioner timely filed objections, 11 again claiming that he had not received a complete copy of the October 2025 Report and 12 Recommendation. Upon review of the docket, the Court determined that the October 2025 13 Report and Recommendation had mistakenly been entered a second time on April 6, 2026 14 15 (Dkt. 9), thereby creating the appearance that Magistrate Judge Fricke had issued a second 16 report and recommendation. In light of this clerical error, the Court once again directed the 17 Clerk to resend to petitioner a complete copy of the October 2025 Report and 18 Recommendation (Dkt. 6), which is the only report and recommendation issued in this 19 matter and allowed petitioner until May 25, 2026 to file objections. Dkt. 13. 20 21 Petitioner timely filed objections to the October 2025 Report and Recommendation. 22 Dkt. 15. Once again, he does not explain why he has not paid the required $5.00 filing fee 23 but instead argues that Magistrate Judge Fricke lacked jurisdiction to address his petition 24 because he did not consent to her review of the matter. He alleges that Magistrate Judge 25 26 Fricke’s involvement violates his Fourth, Fifth, and Fourteenth Amendment rights. He also ORDER ADOPTING REPORT AND 1 contends that this Court lacks jurisdiction because he filed a timely notice of appeal to the 2 Ninth Circuit. 3 Petitioner is mistaken in both respects. First, consent of the parties is not required 4 5 for a magistrate judge to review a proposed petition for writ of habeas corpus under 28 6 U.S.C. § 2241 or an application to proceed in forma pauperis when the matter is referred 7 under 28 U.S.C. § 636(b). See Tripati v. Rison, 847 F.2d 548, 548–49 (9th Cir. 1988). In 8 such circumstances, the magistrate judge may address non-dispositive matters and, as 9 10 appropriate, submit proposed findings and recommendations to the district judge for de 11 novo review of any timely objections. See 28 U.S.C. § 636(b)(1); see also, Davis v. 12 Tuolumne County Jail, 2025 WL 1490133, *1-*2 (E.D. Cal. May 23, 2025). That is what 13 occurred here. Second, this Court retains jurisdiction because Petitioner’s notice of appeal 14 15 was stricken as premature. At the time petitioner filed the notice of appeal, this Court had 16 not yet entered a final judgment or other appealable order. A magistrate judge’s report and 17 recommendation is not itself appealable, and a notice of appeal directed to such a 18 recommendation is ineffective. See Burnside v. Jacquez, 731 F.3d 874, 875–76 (9th Cir. 19 2013). 20 21 Accordingly, because petitioner has neither paid the $5.00 filing fee nor explained 22 his inability to do so, the Court finds and ORDERS as follows: 23 1) The Court ADOPTS the October 2025 Report and Recommendation. Dkt. 6. 24 2) Petitioner’s motion to proceed in forma pauperis is DENIED. Dkt. 3. 25 26 ORDER ADOPTING REPORT AND 1 3) Petitioner is ORDERED to pay the $5.00 filing fee within 30 days of the date 2 of this Order. If he does not pay the fee within that time, his habeas corpus petition will be 3 dismissed without prejudice. 4 5 4) The Clerk is directed to send petitioner a copy of this Order. 6 Dated this 1st day of June, 2026. 7 A 8 Robert S. Lasnik 9 United States District Judge

10 11 12

15 16 17

18 19 20 21 22 23 24 25 26 ORDER ADOPTING REPORT AND