Goodrum v. City of Fallon et al

Filing 6

ORDER - Judge Cobb's Report and Recommendation (ECF No. 5 ) is accepted and adopted in full. Plaintiff's application to proceed in forma pauperis (ECF No. 3 ) is granted. NDOC shall pay Clerk $350 filing fee from inmate account. The Motion for Appointment of Counsel (ECF No. 4 ) is denied as moot. Clerk is directed to file the Complaint (ECF No. 1 -1). Clerk is directed to send a copy of this order to the Chief of Inmate Services (mailed to NDOC on 4/27/2021). This case is dismissed without prejudice. Clerk is directed to enter judgment accordingly and to close this case. Signed by Chief Judge Miranda M. Du on 4/27/2021. (Copies have been distributed pursuant to the NEF - AB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MITCHELL KEITH GOODRUM,
Plaintiff,
v.
CITY OF FALLON, et al.,

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Defendants.

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Case No. 3:20-cv-00539-MMD-WGC
ORDER

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Pro se Plaintiff Mitchell Goodrum filed a civil rights complaint under 42 U.S.C. §

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1983. (ECF No. 1-1.) Goodrum has also filed an application to proceed in forma pauperis

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(“IFP”) and a motion for appointment of counsel. (ECF Nos. 3, 4.) Before the Court is the

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Report and Recommendation (“R&R” or “Recommendation”) of United States Magistrate

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Judge William G. Cobb (ECF No. 5), recommending that Goodrum’s IFP application be

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granted, motion for appointment of counsel be denied as moot, and that this case be

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dismissed without prejudice. Goodrum had until April 22, 2021 to file an objection. To

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date, no objection to the R&R has been filed. For this reason, and as explained below,

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the Court adopts Judge Cobb’s R&R and will dismiss this case without prejudice.

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The 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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fails to object to a magistrate judge’s recommendation, the Court is not required to

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conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas

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v. Arn, 474 U.S. 140, 149 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114,

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1116 (9th Cir. 2003) (“De novo review of the magistrate judges’ findings and

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recommendations is required if, but only if, one or both parties file objections to the

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findings and recommendations.”) (emphasis in original); Fed. R. Civ. P. 72, Advisory

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Committee Notes (1983) (providing that the Court “need only satisfy itself that there is no

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clear error on the face of the record in order to accept the recommendation.”).

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Because there is no objection, the Court need not conduct de novo review, and is

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satisfied Judge Cobb did not clearly err. Here, Judge Cobb recommends Goodrum’s IFP

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application be granted as Goodrum’s average monthly balance for the last six months

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was $0.03, and his average monthly deposits were $0.03. (ECF No. 5 at 3.) Judge Cobb

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further recommends Goodrum’s complaint be dismissed because a § 1983 action for

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damages from an unconstitutional conviction or sentence is improper until the conviction

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or sentence has been invalidated. (Id. at 5-6.) This likewise applies to Goodrum’s

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fabrication of evidence claim. (Id.) The Court agrees with Judge Cobb. Having reviewed

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the R&R and the record in this case, the Court will adopt the R&R in full.

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It is therefore ordered that Judge Cobb’s Report and Recommendation (ECF No.
5) is accepted and adopted in full.

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It is further ordered that Plaintiff Goodrum’s application to proceed in forma

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pauperis (ECF No. 3) is granted. Given Goodrum’s low balance, the Court will not require

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Goodrum to make an initial payment. However, when Goodrum’s prison account exceeds

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$10.00, Goodrum will be required to make monthly payments in the amount of 20% of the

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preceding month’s income credited to Goodrum’s account until the $350.00 filing fee is

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paid. This is required even if a case is dismissed or is otherwise unsuccessful.

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It is further ordered that Plaintiff Goodrum’s motion for appointment of counsel
(ECF No. 4) is denied as moot.

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The Clerk of Court is directed to file Plaintiff Goodrum’s complaint (ECF No. 1-1).

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The Clerk of Court is further directed to send a copy of this order to the attention

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of Chief of Inmate Services for the Nevada Department of Corrections, P.O. Box 7011,

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Carson City, Nevada 89702.

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It is further ordered that this case be dismissed without prejudice.

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The Clerk of Court is directed to enter judgment accordingly and to close this case.

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DATED THIS 27th Day of April 2021.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE
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