Smith v. Hoss

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

STANLEY E. SMITH, Plaintiff, v. JUDGE TERRENCE HASS, et al., Case No. 4:22-cv-00007-SLG-KFR Defendants.

ORDER RE SCREENING ORDER AND REPORT AND RECOMMENDATION REGARDING COMPLAINT Before the Court at Docket 1 is Plaintiff Stanley E. Smith’s Prisoner’s Complaint under the Civil Rights Act, 42 U.S.C. § 1983, and Mr. Smith’s Prisoner’s Application to Waive Prepayment of the Filing Fee at Docket 3. Mr. Smith subsequently filed an untitled motion that requests counsel, his release from

custody, and to have his charges dismissed at Docket 5, and a Motion to Amend his Complaint at Docket 6. These matters were referred to the Honorable Magistrate Judge Kyle F. Reardon. At Docket 8, Judge Reardon issued a Screening Order and Report and Recommendation Regarding Complaint in which he recommended that this action be dismissed with prejudice because the

complaint failed to state a claim upon which relief may be granted and the futility of amendment, that all pending motions be denied as moot, and that a dismissal under these circumstances should 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).1 No objections to the Screening Order and Report and Recommendation Regarding Complaint were filed.

The 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 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 Screening Order and Report and Recommendation Regarding Complaint and agrees with its analysis. Accordingly,

the Court adopts the Report and Recommendation Regarding Complaint in its entirety, and IT IS ORDERED that this action is DISMISSED WITH PREJUDICE for failing to state a claim upon which relief may be granted and the futility of

1 28 U.S.C. § 1915(g) prohibits a prisoner who files more than three actions or appeals in any federal court in the United States which 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 physical injury.” 2 28 U.S.C. § 636(b)(1). 3 Id. 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. 4:22-cv-00007-SLG-KFR, Smith v. Judge Hass, et al. amendment. The application to waive prepayment of the filing fee at Docket 3, the untitled motion at Docket 5, and the motion to amend the complaint at Docket 6 are each DENIED AS MOOT. This dismissal shall be counted 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). The Clerk of Court shall enter a final judgment accordingly. DATED this 16th day of August, 2022, at Anchorage, Alaska.

/s/ Sharon L. Gleason UNITED STATES DISTRICT JUDGE

Case No. 4:22-cv-00007-SLG-KFR, Smith v. Judge Hass, et al.