Mixon v. Apple Incorporated et al

Filing 5

ORDER that the Report and Recommendation of Magistrate Judge William G. Cobb ECF No. 3 is accepted and adopted in its entirety; granting ECF No. 1 Motion/Application for Leave to Proceed in forma pauperis; Plaintiff will be requ ired to pay an initial partial filing fee in the amount of $12.77. Thereafter, whenever Plaintiff's prison account exceeds $10, Plaintiff will be required to make monthly payments in the amount of 20 percent of the preceding month' ;s income credited to his account until the full filing fee is paid; Clerk directed to detach and file the complaint ECF No. 1 -1; the complaint ECF No. 1 -1 is dismissed with prejudice; Clerk directed to close case. Signed by Judge Miranda M. Du on 04/27/2017. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA
***
Case No. 3:17-cv-00047-MMD-WGC

8
ANTONIO LEE MIXON,
9
Plaintiff,
10
11

v.
APPLE INCORPORATED,
TIDAL WAVE COMPANY,

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
WILLIAM G. COBB

12
Defendants.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Before the Court is the Report and Recommendation of United States Magistrate
Judge William G. Cobb (ECF No. 3) (“R&R”) relating to Plaintiff’s application to proceed
in forma pauperis (“IFP Application”) (ECF No. 1) and pro se complaint (ECF No. 1-1).
Plaintiff filed his objection on February 8, 2017 (“Objection”). (ECF No. 4.)
This Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party
timely objects to a magistrate judge’s report and recommendation, then the court is
required to “make a de novo determination of those portions of the [report and
recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails
to object, however, the court is not required to conduct “any review at all . . . of any issue
that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).
Indeed, the Ninth Circuit has recognized that a district court is not required to review a
magistrate judge’s report and recommendation where no objections have been filed. See
United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard
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

The Magistrate Judge recommends granting Plaintiff’s IFP Application. Plaintiff

9

does not object to the granting of his IFP Application, but does object to being required

10

to pay an initial partial filing fee of $12.77 fee and, thereafter, whenever his prison

11

account exceeds $10, that he be required to make monthly payments in the amount of

12

20 percent of the preceding month’s income credited to his account until the filing fee is

13

paid. Plaintiff contends that when in forma pauperis status is granted, he should not

14

have to pay and that he did not have to pay in two other cases filed in this Court. (ECF

15

No. 4 at 4.) However, a prisoner who has been granted in forma pauperis status is still

16

required to pay the full amount of the filing fee. 28 U.S.C. § 1915(a)(2). Moreover, the

17

Court is required to “assess and, when funds exist, collect, as a partial payment of any

18

court fees required by law, an initial partial filing fee” of a certain amount.

19

Magistrate Judge recommends such partial payment based on Plaintiff’s certified

20

financial statement. The Court agrees with the Magistrate Judge’s recommendation.

Id. The

21

The Magistrate Judge recommends dismissing the complaint with prejudice

22

because it is “fanciful,” and “even taking these far-fetched allegations as true, Plaintiff

23

admits he does not hold a patent, trademark or copyright for the prototype(s) and

24

therefore has no legal recourse.” (ECF No. 3 at 5.) Plaintiff essentially argues that his

25

complaint should be allowed to proceed because evidence of infringement is clear on

26

the face of the complaint and because his complaint should be viewed under the less

27

stringent pleading standard governing pro se complaints. (ECF No. 4 at 2-3, 6-7.)

28

However, the Court agrees with the Magistrate Judge that Plaintiff’s allegations are
2

1

“fanciful” and his claims frivolous. Accordingly, the Court adopts the Magistrage Judge’s

2

recommendation.

3

It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

4

Recommendation of Magistrate Judge William G. Cobb (ECF No. 3) be accepted and

5

adopted in its entirety.

6

It is ordered that plaintiff’s application to proceed in forma pauperis (ECF No. 1)

7

without having to prepay the full filing fee is granted. Plaintiff wil be required to pay an

8

initial partial filing fee in the amount of $12.77. Thereafter, whenever Plaintiff’s prison

9

account exceeds $10, Plaintiff will be required to make monthly payments in the amount

10

of 20 percent of the preceding month’s income credited to his account until the full filing

11

fee is paid.

12

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

13

It is further ordered that the complaint (ECF No. 1-1) is dismissed with prejudice.

14

The Clerk is instructed to close this case.

15

DATED THIS 27th day of April 2017.

16
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
3