Mixon v. United States Bureau of Prisons

Filing 22

ORDERED that the 12 Motion to Dismiss is granted. Ordered that the 21 Report and Recommendation is adopted as the opinion of the Court. Further ordered that the Clerk of the Court shall enter judgment accordingly. Signed by Senior Judge David C Bury on 2/21/2017.(BAR)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Wynona Mixon, No. CV-16-00260-TUC-DCB (BGM) Plaintiff, 10 ORDER 11 v. 12 United States Bureau of Prisons, 13 Defendant. 14 15 This matter was referred to Magistrate Judge Bruce G. Macdonald on June 6, 16 2016. Pursuant to the Rules of Practice for the United States District Court, District of 17 Arizona (Local Rules), Rule (Civil) 72.1(a), Magistrate Judge Macdonald issued a Report 18 and Recommendation (R&R) on January 27, 2017. (R&R (Doc. 21)). He recommends 19 granting the Defendant’s Motion to Dismiss. 20 21 STANDARD OF REVIEW The duties of the district court, when reviewing an R&R of a Magistrate Judge, are 22 set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). 23 The district court may “accept, reject, or modify, in whole or in part, the findings or 24 recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. § 25 636(b)(1). When the parties object to an R&R, “‘[a] judge of the [district] court shall 26 make a de novo determination of those portions of the [R&R] to which objection is 27 made.’” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). 28 When no objections are filed, the district court does not need to review the R&R de novo. 1 Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 2 328 F.3d 1114, 1121-22 (9th Cir.2003) (en banc). 3 The parties were sent copies of the R&R and instructed they had 14 days to file 4 written objections. 28 U.S.C. § 636(b), see also, Federal Rule of Criminal Procedure 72 5 (party objecting to the recommended disposition has fourteen (14) days to file specific, 6 written objections). The Plaintiff has not filed an objection. 7 8 REPORT AND RECOMMENDATION The Honorable Bruce G. Macdonald considered whether Plaintiff states a due 9 process claim and whether she may seek a declaratory judgment that she is entitled to 10 have her legal representation in CV 13-295 TUC JGZ paid for by the Bureau of Prison 11 (BOP), pursuant to 28 U.S.C. §§ 516-517, 28 C.F.R. § 50.15. The Magistrate Judge 12 agreed with the Government that the Plaintiff has no due process right to be provided 13 individual-capacity representation because Section 50.15 is permissive. (R&R (Doc. 21) 14 at 5-6.) Therefore, the Plaintiff may not seek injunctive relief to reverse the 15 Government’s discretionary decision to deny her request for representation in the civil 16 damage suit brought against her and other BOP employees by a prisoner arising out of 17 events, including an alleged rape and sexual assault, that transpired at BOP’s Tucson 18 Federal Penitentiary. The BOP declined to accept her defense, but is defending the other 19 BOP employees. The Magistrate Judge agreed with the Government that her claims 20 brought under the Administrative Procedures Act (APA) must be dismissed because the 21 APA does not apply when “‘agency action is committed to agency discretion by law.’” 22 (R&R (Doc. 21) at 7-9 (quoting 5 U.S.C. § 701(a)(2)). And, the Magistrate Judge 23 rejected Plaintiff’s equal protection claim because she fails to assert any facts suggesting 24 she is a member of “‘a protected or suspect class or otherwise suffers the unequal 25 burdening of a fundamental right.’” Id. at 9. 26 27 The Magistrate Judge recommends dismissal without leave to amend. He found, and the Court agrees, that there is no set of facts that could cure the deficiencies found in 28 -2- 1 the Plaintiff’s Complaint. The Court notes that the Plaintiff has failed to assert otherwise 2 by objection to the R&R. 3 There being no Objection, review has been waived, but the Court nevertheless 4 reviews at a minimum, de novo, the Magistrate Judge’s conclusions of law. Robbins v. 5 Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing Turner v. Duncan, 158 F.3d 449, 455 6 (9th Cir. 1998) (conclusions of law by a magistrate judge reviewed de novo); Martinez v. 7 Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (failure to object standing alone will not 8 ordinarily waive question of law, but is a factor in considering the propriety of finding 9 waiver)). The Court finds the R&R to be thorough and well-reasoned, without any clear 10 error in law or fact. See United States v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989) 11 (United States v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989) (citing 28 U.S.C. § 12 636(b)(1)(A) as providing for the district court to reconsider matters delegated to 13 magistrate judge when there is clear error or recommendation is contrary to law). The 14 Court accepts and adopts the R&R as the opinion of the Court, pursuant to 28 U.S.C. § 15 636(b)(1). For the reasons stated in the R&R, the Court grants the Defendant’s Motion to 16 Dismiss. 17 Accordingly, 18 IT IS ORDERED that the Report and Recommendation (Doc. 21) is adopted as 19 20 21 22 23 24 the opinion of the Court. IT IS FURTHER ORDERED that the Motion to Dismiss (Doc. 12) is GRANTED. IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment accordingly. Dated this 21st day of February, 2017. 25 26 Honorable David C. Bury United States District Judge 27 28 -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?