Yaritz v. Underwriter of Rush City/Moose Lake et al
ORDER ADOPTING REPORT AND RECOMMENDATION. IT IS HEREBY ORDERED: 1. Plaintiff Harold Yartiz's objection to April 10, 2023 R&R 8 is OVERRULED. 2. The April 10, 2023 R&R 7 is ADOPTED. 3. Yaritz's Application to Proceed IFP 2 is DENIED. 4. Yartiz's Motion to Appoint Counsel 3 is DENIED. 5. Yaritz's Complaint 1 is DISMISSED without prejudice. (Written Opinion) Signed by Judge Wilhelmina M. Wright on 5/19/2023. (ABR)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 23-cv-0049 (WMW/DTS)
ORDER ADOPTING REPORT AND
Underwriter of Rush City/Moose Lake,
Paul Schnell, Michelle Smith, Nan
Larson, Warden Bosch, Victor Wanchena,
Stephanie Huppert, Westphal,
Before the Court is the April 10, 2023 Report and Recommendation (R&R) of
United States Magistrate Judge David T. Schultz. (Dkt. 7.) Plaintiff Harold Yaritz timely
filed objections. (Dkt. 8.) For the reasons stated below, the Court overrules Yaritz’s
objection, adopts the R&R, denies the IFP application, denies the motion appoint counsel
and dismisses the action without prejudice.
This litigation stems from Yaritz’s efforts to proceed in forma pauperis (IFP) in
Yaritz v. Department of Corrections, 22-cv-2042 (D. Minn. Aug. 18, 2022) (Yaritz I) and
Yaritz v. State of Minnesota, 22-cv-2320 (D. Minn. Sept. 22, 2022) (Yaritz II). In those
cases, Yaritz claims that the prison’s financial department incorrectly calculated the
average balance of and deposits to his prison trust account in the six months preceding each
action, creating the appearance that he had more financial assets than he did. (Dkt. 1 at 2-
3.) Yaritz claims that this error was intentional, malicious, and delayed those cases from
moving forward. (Dkt. 1 at 1.)
The Court reviews de novo the portions of an R&R objected to by a party and “may
accept, reject, or modify, in whole or in part, the findings or recommendation made by the
magistrate judge.” 28 U.S.C. § 636(b)(1); D. Minn. LR 72.2(b)(3). A party’s objections
to an R&R must “specify the portions of the magistrate judge’s report and recommendation
to which objections are made and provide a basis for those objections.” Mayer v. Walvatne,
No. 07-1958, 2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008). An objection that
restates arguments made to and considered by the magistrate judge is reviewed for clear
error. Montgomery v. Compass Airlines, LLC, 98 F.Supp.3d 1012, 1017 (D. Minn. Mar.
30, 2015). When reviewing an R&R, the Court does not consider evidence that was not
submitted to the magistrate judge for consideration. In re Bair Hugger Forced Air
Warming Devices Prods. Liab. Litig., No. 15-cv-2666, 2017 WL 1373257, at *2 (D. Minn.
Apr. 13, 2017) (citing Roberts v. Apfel, 222 F.3d 466, 470 (8th Cir. 2000)). In the absence
of specific objections, the Court reviews an R&R for clear error. Grinder v. Gammon, 73
F.3d 793, 795 (8th Cir. 1996). Because Yaritz is self-represented, the Court liberally
interprets his objections. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Horsey v. Asher, 741
F.2d 209, 211 n.3 (8th Cir. 1984).
Yaritz’s Objection to the R&R
Construing Yaritz’s objection liberally, the Court applies the legal standards
governing the review of objections to the R&R. Under 28 U.S.C. § 636(b)(1) and the local
rules of the District of Minnesota, the Court reviews de novo the portions of an R&R that
are objected to by a party. The Court may accept, reject, or modify the findings or
recommendations made by the magistrate judge.
In order for objections to be considered, they must specify the particular portions of
the magistrate judge’s report and recommendation to which the objections are made and
provide a basis for those objections. Mayer, 2008 WL 4527774, at *2. However, Yaritz’s
objection fails to meet these requirements. Instead of clearly articulating what he is
objecting to, Yaritz’s objection seems to deviate from the substance of the R&R and delve
into a discussion concerning the need for improved resources for inmates. This lack of
specificity and relevance undermines the persuasiveness of Yaritz’s objection.
When objections merely restate arguments previously made to and considered by
the magistrate judge, they are reviewed for clear error. Montgomery, 98 F.Supp.3d at 1017.
Furthermore, the Court only considers evidence that was submitted to the magistrate judge
for consideration. In re Bair Hugger, 2017 WL 1373257, at *2. In the absence of specific
objections, the Court reviews an R&R for clear error. Grinder, 73 F.3d at 795. But in the
case of self-represented individuals such as Yaritz, the Court applies a liberal interpretation
to their objections. Erickson, 551 U.S. at 94; Horsey, 741 F.2d at 211 n.3.
After considering Yaritz’s objection in light of these legal principles, the Court
concludes that Yaritz’s objection lacks substance, fails to clearly identify the specific
objection to the R&R and does not address the issues raised in a meaningful manner.
Therefore, the Court overrules Yaritz’s objections.
Based on the foregoing analysis and all the files, records and proceedings herein, IT
IS HEREBY ORDERED:
Plaintiff Harold Yaritz’s objection to the April 10, 2023 R&R, (Dkt. 8), is
The April 10, 2023 R&R, (Dkt. 7), is ADOPTED;
Yaritz’s Application to Proceed IFP, (Dkt. 2), is DENIED;
Yaritz’s Motion to Appoint Counsel, (Dkt. 3), is DENIED;
Yaritz’s Complaint, (Dkt. 1), is DISMISSED without prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: May 19, 2023
s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge
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