Kalincheva v. Neubarth

Filing 20

ORDER the Report and Recommendation entered on 8/29/14, (Dkt. 16 ) is INCORPORATED by reference and ADOPTED IN ITS ENTIRETY. Plaintiff's Motions to Proceed In Forma Pauperis (Dkt. 1 ) is MOOT. The case is DISMISSED without prejudice. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MAGDALINA KALINCHEVA,
Case No. 1:14-cv-00351-EJL-CWD
Plaintiff,
ORDER
v.
JESSE NEUBARTH,
Defendant.

Before the Court in the above entitled matter is an Application filed by the Plaintiff,
Magdalina Kalincheva, seeking leave to proceed in forma pauperis and a supporting
Affidavit. (Dkt. 1, 14.)1 The Court referred the motion to United States Chief Magistrate
Judge Candy W. Dale who, on August 29, 2014, issued a Report and Recommendation
(“Report”), recommending that the Court deny the same. (Dkt. 13, 16.) Any party may
challenge a Magistrate Judge’s proposed recommendation by filing written objections within
ten days after being served with a copy of the magistrate’s Report and Recommendation. 28

1

Plaintiff has also filed several Ex Parte Motions. (Dkt. 4-10, 15.)

U.S.C. § 636(b)(1). Plaintiff has filed objections to the Report. (Dkt. 18.)2 The matter is now
ripe for the Court’s consideration. See Local Civ. R. 72.1(b)(2); 28 U.S.C. § 636(b)(1)(B).
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.” See also
Fed. R. Civ. P. 72(b). Where the parties object to a report and recommendation, this Court
“shall make a de novo determination of those portions of the report which objection is
made.” Id. Where, however, no objections are filed the district court need not conduct a de
novo review. In United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court
interpreted the requirements of 28 U.S.C. 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge’s findings and recommendations de novo if
objection is made, but not otherwise. As the Peretz Court instructed, “to the
extent de novo review is required to satisfy Article III concerns, it need not be
exercised unless requested by the parties.” Peretz, 501 U.S. at 939 (internal
citation omitted). Neither the Constitution nor the statute requires a district
judge to review, de novo, findings and recommendations that the parties
themselves accept as correct. See Ciapponi, 77 F.3d at 1251 (“Absent an
objection or request for review by the defendant, the district court was not
required to engage in any more formal review of the plea proceeding.”); see
also Peretz, 501 U.S. at 937-39 (clarifying that de novo review not required for
Article III purposes unless requested by the parties) . . . .
See also Wang v. Masaitis, 416 F.3d 993, 1000 n.13 (9th Cir. 2005). Furthermore, to the
extent that no objections are made, arguments to the contrary are waived. See Fed. R. Civ.
P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen days

2

Since the Report was issued, the Plaintiff also filed a Notification of Complexity of Civil Case and
Exhibit 24 – Special Circumstances Damages and Recent Refunds. (Dkt. 17, 19.)

of service of the Report and Recommendation). “When no timely objection is filed, the Court
need only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation.” Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v.
United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).
In this case, Plaintiff filed objections. Therefore, the Court has conducted a de novo
review of those portions of the Report. The Court has also reviewed the entire Report as well
as the record in this matter for clear error on the face of the record and finds as follows.
DISCUSSION
The Report concluded that the Application to Proceed In Forma Pauperis should be
denied because both jurisdiction and venue are lacking. In her objections, Plaintiff argues the
Report disregarded and omitted the legal standard applicable to certain of her claims,
disregarded and omitted all facts, failed to consider the Amended Complaint and Ex Parte
Motions, erroneously decided the jurisdiction and venue questions, and failed to toll the
statute. (Dkt. 18.) The Court has reviewed the Report, the objections, and the entire record
herein all in accordance with the standard stated above. Having done so the Court concludes
that the Magistrate Judge’s conclusions are well founded and consistent with this Court’s
own view of the record.
Proceedings in forma pauperis are governed by 28 U.S.C. § 1915 which allows a court
to authorize the commencement of a proceeding without payment of fees or security by “a
person who submits an affidavit that includes a statement...that the person is unable to pay
such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). The affidavit supporting an in

forma pauperis motion is sufficient if it states that the plaintiff, because of his poverty,
cannot “pay or give security for the costs” and still be able to provide himself and dependents
“with the necessities of life. ” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339
(1948). Such averment must “state the facts as to affiant's poverty with some particularity,
definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981)
(internal quotation omitted). Motions under § 1915 are left to the sound discretion of the trial
court and are granted only in exceptional circumstances. Id.
Based on a de novo review of the record, this Court agrees with the Report and finds
the reasoning therein to be well founded in law and consistent with this Court’s own view
of the evidence in the record. The Court must dismiss a complaint or any portion thereof that
states a frivolous or malicious claim, that fails to state a claim upon which relief may be
granted, or that seeks monetary relief from a defendant who is immune from such relief. See
28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A. For the reasons stated in the Report, this
Court concludes that the claims raised in this action do not arise out of conduct occurring in
Idaho or any basis upon which to assert personal jurisdiction over the parties in this matter.
(Dkt. 16.) Further, venue is not proper in Idaho. (Dkt. 16.) Accordingly, the case must be
dismissed.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation entered on August 29, 2014, (Dkt. 16), should be, and is hereby,
INCORPORATED by reference and ADOPTED IN ITS ENTIRETY. Accordingly, IT

IS HEREBY ORDERED as follows:
1)

Plaintiff’s Motions to Proceed In Forma Pauperis (Dkt. 1) is MOOT.

2)

The case is DISMISSED without prejudice.

DATED: September 16, 2014

Honorable Edward J. Lodge
United States District Judge