Milbourn v. Clinton

Filing 10

ORDER Accepting and Adopting in its entirety ECF No. 8 Report and Recommendations. IT IS FURTHER ORDERED Plaintiff's Application to Proceed in form pauperis ECF No. 4 is granted. Clerk directed to detach and file th e Complaint ECF No. 1 -1 and the Complaint be dismissed with prejudice. Plaintiff's Motion to Dismiss ECF No. 9 is denied. Clerk directed to close case. Signed by Judge Miranda M. Du on 10/28/2016. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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RICHARD MILBOURN,

Case No. 3:16-cv-00541-MMD-WGC
Plaintiff,

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v.
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HILLARY RODHAM CLINTON, et al.,
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ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE
WILLIAM G. COBB

Defendant..
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Before the Court is the Report and Recommendation of United States Magistrate

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Judge William G. Cobb (ECF No. 8) (“R&R” or “Recommendation”) relating to plaintiff’s

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application to proceed in forma pauperis (ECF Nos. 4, 7) and pro se complaint (ECF No.

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1-1). The R&R recommends dismissing this action with prejudice for failure to state a

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claim. Plaintiff had until October 17, 2016, to object to the Recommendation. No

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objection to the R&R has been filed. Instead, Plaintiff filed a Motion to Dismiss (“Motion”)

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(ECF No. 9) wherein he claims that “despite prohibitions against third party intervention

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and the providing of legal advice, . . . the Magistrate Judge ’issued a ‘Report and

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Recommendation’ amounting to legal fiction.” (Id. at 1.) Plaintiff further indicates that he

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must have initiated the incorrect process and therefore moved to dismiss this matter in

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its entirety, “thereby mooting the ‘Report and Recommendation.’” (Id.)

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails

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to object, however, the court is not required to conduct “any review at all . . . of any issue

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that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

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Indeed, the Ninth Circuit has recognized that a district court is not required to review a

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magistrate judge’s report and recommendation where no objections have been filed. See

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United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard

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of review employed by the district court when reviewing a report and recommendation to

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which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

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1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the

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view that district courts are not required to review “any issue that is not the subject of an

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objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then

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the court may accept the recommendation without review. See, e.g., Johnstone, 263 F.

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Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to

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which no objection was filed).

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To the extent Plaintiff is attempting to object to the R&R by filing his Motion,

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Plaintiff’s objection is overruled. The Court is required to screen Plaintiff’s complaint

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because he is seeking leave to proceed informa pauperis. 28 U.S.C. § 1915. His

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complaint was not screened because of purported “third party intervention” as Plaintiff

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suggests in this Motion. As to the claims in the complaint, the Court agrees with the

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Magistrate Judge that they are vague, conclusory and indeed frivolous.

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It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge William G. Cobb (ECF No. 8) is accepted and

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adopted in its entirety.

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It is further ordered that plaintiff’s application to proceed in form pauperis (ECF

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No. 4) without having to prepay the full filing fee is granted. Plaintiff will not be required

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to pay an initial installment fee; however, pursuant to pursuant to 28 U.S.C. § 1915(b),

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he is still required to pay the full amount of the filing fee over time. Since his average
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monthly deposits are $0 and his average monthly balance for the last six months is

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nearly $0, he will not be required to pay a partial initial filing fee. Whenever his prison

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account exceeds $10, he will be required to make payments as provided in 28 U.S.C. §

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1915(b)(2) until the filing fee is paid.

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It is further ordered that the Clerk detach and file the complaint (ECF No. 1-1).

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It is further ordered that the complaint be dismissed with prejudice.

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It is further ordered that Plaintiff’s Motion to Dismiss (ECF No. 9) is denied.

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The Clerk is instructed to close this case.

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DATED THIS 28th day of October 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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