Baker v. Schriro et al

Filing 22

ORDER that the Court adopts the Report and Recommendation of the Magistrate Judge (Doc. 21). FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1), construed as a civil rights complaint, is DISMISSED with prejudice, there by terminating this case. The Clerk of the Court shall enter judgment accordingly. FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Judge Stephen M McNamee on 8/10/10. (KMG)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Upon screening, the Court dismissed three of Petitioner's four grounds for relief as improperly asserted civil rights claims (Doc. 7). The matter was then referred to Magistrate Judge Jay R. Irwin for a Report and Recommendation (id.). On July 20, 2010, the Magistrate Judge filed a Report and Recommendation with this Court (Doc. 21). The Magistrate Judge recommended that Petitioner's Petition for Writ of Habeas Corpus be construed as a civil rights complaint and be dismissed with prejudice for failure to state a claim (id.). To date, no objections have been filed. STANDARD OF REVIEW The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). Parties have fourteen days from the service of a copy of the Magistrate's recommendation within which to file specific written objections to the Court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Failure to object to a Magistrate Judge's vs. Charles L. Ryan, et al., Respondents. Daniel Lee Baker, Petitioner, ) ) ) ) ) ) ) ) ) ) No. CV 09-0333-PHX-SMM (JRI) MEMORANDUM OF DECISION AND ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

recommendation relieves the Court of conducting de novo review of the Magistrate Judge's factual findings and waives all objections to those findings on appeal. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to object to a Magistrate Judge's conclusion "is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal." Id. DISCUSSION Having reviewed the Report and Recommendation of the Magistrate Judge, and no Objections having been made by any party thereto, the Court hereby incorporates and adopts the Magistrate Judge's Report and Recommendation. The Court construes Petitioner's Petition for Writ of Habeas Corpus as a civil rights complaint pursuant to 42 U.S.C. § 1983 and dismisses the complaint with prejudice for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915A (id.). CONCLUSION For the reasons set forth, IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation of the Magistrate Judge (Doc. 21). IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1), construed as a civil rights complaint, is DISMISSED with prejudice, thereby terminating this case. The Clerk of the Court shall enter judgment accordingly. IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right. DATED this 10th day of August, 2010.

-2-