Howell v. Pusich

Filing 5

ORDER that the R&R (ECF No. 3 ) is accepted and adopted in its entirety; plaintiff's IFP application (ECF No. 1 ) is granted; NDOC to pay Clerk from inmate account (copy of order sent to Finance and NDOC Chief of Inmate Services); Clerk directed to detach and file the complaint (ECF No. 1 -1); this action is dismissed with prejudice; Clerk directed to close case. Signed by Judge Miranda M. Du on 3/2/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DAVID HOWELL,

Case No. 3:17-cv-00736-MMD-WGC
Plaintiff,

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v.
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MAIZE W. PUSICH, et al.,

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

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Defendants.
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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. 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 6, 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 that

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recommendation.

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The Magistrate Judge recommends dismissing the complaint with prejudice

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because Plaintiff cannot state a claim under 43 U.S.C. § 1983 against his assigned

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public defender, Maize Pusich, for failing to advise the Nevada Departmet of Corrections

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of the risks of harm in housing him in general population. (ECF No. 3 at 4.) The gist of

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Plaintiff’s objection is that a public defender is not immune from suit. (ECF No. 4.)

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However, the Magistrate Judge correctly found that a public defender is not a state actor

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and therefore cannot be deemed to have acted under color of law to give rise to liability

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under section 1983. (ECF No. 3 at 4.)
It

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is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge William G. Cobb (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)

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without having to prepay the full filing fee is granted; plaintiff will not be required to pay

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an initial installment fee. Nevertheless, the full filing fee will still be due, pursuant to 28

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U.S.C. § 1915, as amended by the Prisoner Litigation Reform Act of 1996. Plaintiff is

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permitted to maintain this action to conclusion without the necessity of prepayment of

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fees or costs or the giving of security therefor. This order granting in forma pauperis

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status will not extend to the issuance of subpoenas at government expense.

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It is further ordered that, pursuant to 28 U.S.C. § 1915, as amended by the

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Prisoner Litigation Reform Act of 1996, the Nevada Department of Corrections will pay to

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the Clerk of the United States District Court, District of Nevada, 20% of the preceding

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month's deposit to the account of David Howell, Inmate No. 93054 (in months that the

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account exceeds $10.00) until the full $350 filing fee has been paid for this action. The

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Clerk will send a copy of this order to the Attention of the Chief of Inmate Services for the

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Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702.

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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 this action is dismissed with prejudice and the Clerk is

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instructed to close the case.
DATED THIS 2nd day of March 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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