Polk v. Jones et al

Filing 7

ORDER - The Report and Recommendation (ECF No. 3 ) is accepted and adopted in its entirety. Plaintiff's IFP application (ECF No. 1 ) is granted; however plaintiff is required to pay the full amount of the filing fee over time. ( Copy of or der mailed to NDOC Inmate Services; NEF to Finance.) Initial partial filing fee of $3.33 due by 1/21/1016. Clerk shall file the motion (ECF No. 1 -1). This action is dismissed with prejudice. Plaintiff's motion for leave to proceed on i nterlocutory appeal in forma pauperis (ECF No. 6 ) is denied as moot. This Court certifies that any in forma pauperis appeal from its order of dismissal would be frivolous or would not be taken in good faith. Clerk shall enter judgment in accordance with this Order and close this case. Signed by Judge Miranda M. Du on 12/22/2016. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 RENARD T. POLK, Case No. 3:16-cv-00250--MMD-WGC Plaintiff, 10 v. ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE WILLIAM G. COBB 11 ROBERT JONES, et al, 12 Defendants. 13 14 Before the Court is the Report and Recommendation of United States Magistrate 15 Judge William G. Cobb (ECF No. 3) (“R&R”) recommending the Court grant Plaintiff’s in 16 format pauperis (“IFP”) application (ECF No. 1) and dismiss this action with prejudice. 17 Plaintiff timely filed an objection to the R&R (ECF No. 4). 18 This Court “may accept, reject, or modify, in whole or in part, the findings or 19 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 20 timely objects to a magistrate judge’s report and recommendation, then the court is 21 required to “make a de novo determination of those portions of the [report and 22 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party 23 fails to object, however, the court is not required to conduct “any review at all . . . of any 24 issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). 25 Indeed, the Ninth Circuit has recognized that a district court is not required to review a 26 magistrate judge’s report and recommendation where no objections have been filed. See 27 United States v. Reyna–Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard 28 of review employed by the district court when reviewing a report and recommendation to 1 which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 2 1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the 3 view that district courts are not required to review “any issue that is not the subject of an 4 objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then 5 the court may accept the recommendation without review. See, e.g., Johnstone, 263 F. 6 Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to 7 which no objection was filed). 8 In light of Plaintiff’s objection, the Court has engaged in a de novo review to 9 determine whether to adopt Magistrate Judge Cobb’s recommendations. The Magistrate 10 Judge correctly found that Plaintiff seeks to challenge and vacate judgments entered in 11 two cases filed before the Court,1 and has not presented exceptional circumstances 12 giving rise to the level of miscarriage of justice to permit him to maintain a separate 13 action for relief from judgments in these two cases. Upon reviewing the R&R and 14 underlying briefs, this Court agrees with Magistrate Judge’s recommendation. Plaintiff’s 15 recourse is to pursue remedies in each of the two cases, not file a separate action. 16 Indeed, he has pursued his available remedies in these cases. In the 2008 Case, he 17 appealed the Court’s decision and the Ninth Circuit Court of Appeals affirmed. (2008 18 Case, ECF Nos. 35, 36, 37.) In the 2005 Case, he is pursuing his appellate rights and 19 filed motion to vacate, which the Court denied. (2005 Case, ECF Nos. 31, 41.) 20 Plaintiff has also moved for leave to file an interlocutory appeal in forma pauperis. 21 (ECF No. 6.) His motion will be denied as moot. To the extent Plaintiff is asking the 22 Court to permit his IFP status to continue on appeal, his request is denied. It 23 is therefore ordered, adjudged and decreed that the Report and 24 Recommendation of Magistrate Judge William G. Cobb (ECF No. 3) is accepted and 25 adopted in its entirety. 26 /// 27 28 cases are 3:05-cv-00252-RCJ-VPC (“2005 Case”) and 3:08-cv-00134-LRHVPC (“2008 Case”). 1The 2 1 It is ordered that Plaintiff’s IFP application (ECF No. 1) is granted; however 2 pursuant to 28 U.S.C. 12 § 1915(b), he is still required to pay the full amount of the filing 3 fee over time. Within thirty (30) days of the date of this order, Plaintiff will be required to 4 pay an initial partial filing fee of $3.33. Thereafter, Plaintiff will be required to make 5 monthly payments of twenty percent (20%) of the preceding month's income credited to 6 his account to be forwarded by the agency having custody over plaintiff to the Clerk of 7 this Court each time the amount in his account exceeds $10 until the filing fee is paid. 8 It is further ordered that the Clerk file the motion (ECF No. 1-1). 9 It is further ordered that this action is dismissed with prejudice. 10 11 It is further ordered that Plaintiff’s motion for leave to proceed on interlocutory appeal in forma pauperis (ECF No. 6) is denied as moot. 12 This Court certifies that any in forma pauperis appeal from its order of dismissal 13 would be frivolous or would not be taken “in good faith” pursuant to 28 U.S.C. § 14 1915(a)(3). 15 16 17 The Clerk is instructed to enter judgment in accordance with this Order and close this case. DATED THIS 22nd day of December 2016. 18 19 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 3

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