Mendez v. Unknown Correctional Officer et al

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATION; denying 2 Application to Proceed in District Court without Prepaying Fees or Costs filed by Raphael Mendez, Adopting 7 Report and Recommendation; this action is summarily DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) without prejudice. (Written Opinion). Signed by Judge Ann D. Montgomery on 01/06/2015. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Raphael Mendez,
Plaintiff,
v.

ORDER
Civil 14-4528 ADM/FLN

Mr. Gilk, et al.,
Defendants.
________________________________________________
On December 11, 2014, Magistrate Judge Noel issued a Report and Recommendation
(“R&R”) [Docket No. 7] dismissing Mendez’s action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Objections to the R&R were due on December 26, 2014.
On December 22, 2014, Mendez filed a Request to Stay R&R [Docket No. 9]. Mendez’s
Request is based on his letter to the U. S. Attorney’s Office requesting criminal prosecution
against the Federal Medical Center in Rochester, Minnesota—the facility where Mendez is a
civil detainee. Decisions to prosecute and what charges to file or bring before a grand jury are
decisions that generally rest in the prosecutor’s discretion. U.S. v. Batchelder, 442 U.S. 114, 124
(1979). Mendez’s letter requesting criminal prosecution does not justify staying the R&R.
Based upon the Findings of Fact, Conclusions of Law, and Recommendation by United
States Magistrate Judge Franklin L. Noel dated December 11, 2014, all the files and records, and
no objections having been filed to said R&R,
IT IS HEREBY ORDERED that
1.

The Request to Stay R&R [Docket No. 9] is DENIED;

2.

Judge Noels’s December 11, 2014 R&R [Docket No. 7] is ADOPTED.

3.

Plaintiff’s application for leave to proceed in forma pauperis [Docket No. 2] is
DENIED; and

4.

This action is summarily DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
without prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: January 6, 2015.

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