Brown v. Marschner

Filing 5

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE VALERIE P. COOKE. Plaintiff's Application for Leave to Proceed in forma pauperis ECF No. 1 is granted; Clerk directed to detach and file the complaint ECF No. 1 -1; the complaint is dismissed without prejudice, without leave to amend; Clerk directed to enter judgment and close case. Signed by Judge Miranda M. Du on 3/29/2018. (Copies have been distributed pursuant to the NEF - KW) Modified on 3/29/2018 to correct filing date(KW).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Case No. 3:17-cv-00464-MMD-VPC

CORNELIUS BROWN,
Plaintiff,
v.
JULIE MARSCHNER,

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
VALERIE P. COOKE

Defendant.

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

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Judge Valerie P. Cooke (ECF No. 3) (“R&R”) relating to plaintiff’s application to proceed

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in forma pauperis (“IFP Application”) (ECF No. 1) and pro se complaint (ECF No. 1-1).

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Plaintiff filed his objection on February 23, 2018 (“Objection”). (ECF No. 4.)

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

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does not object to this recommendation. Accordingly, the Court will accept the

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recommendation.

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The Magistrate Judge recommends dismissing the complaint with prejudice

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because Plaintiff’s claims arise from his criminal trial, such as the alleged conduct of

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Defendant Julie Marschner, the forensic scientist who tesifited at his trial, and the

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alleged errors of the trial judge, and are therefore barred under Heck v. Humphrey, 512

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U.S. 477 (1994). Plaintiff’s objection recounts issues in his criminal trial and states that

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he has had other difficulties in bringing claims because of his pro se status. (ECF No.

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4.) However, these issues do not address the Magistrate Judge’s recommendation.

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Plaintiff cannot pursue his clams under 42 U.S.C. 1983 until he has succesffully

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challenge his underlying criminal convictions.

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It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 3) is accepted and

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adopted in its entirety.

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It is ordered that plaintiff’s application to proceed in forma pauperis (ECF No. 1)
without having to prepay the full filing fee is granted.

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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 (ECF No. 1-1) is dismissed without

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prejudice, without leave to amend.
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It is further ordered that the Clerk enter judgment and close this case.

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DATED THIS 28th day of March 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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