Hester v. Salazar et al

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATIONS dismissing with prejudice 3 Complaint, filed by Donald Norman Hester ; finding as moot 4 Motion to Appoint Counsel ; finding as moot 6 Motion for Service of Process ; adopting Report and Recommendations re 7 Report and Recommendations. Case Closed. Signed by Judge Dale A. Kimball on 09/23/2013. (asp)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

DONALD NORMAN HESTER,
Plaintiff,
vs.

ORDER ADOPTING REPORT AND
RECOMMENDATION

KENNETH L. SALAZAR et al,
Case No. 2:13CV106 DAK
Defendants.

This matter is before the court on the Magistrate Judge’s Report and Recommendation,
which was signed and entered on July 29, 2013.1 On February 12, 2013, Plaintiff filed his
Complaint,2 and, on February 14, 2013, the case was referred to a Magistrate Judge under 28
U.S.C. § 636(b)(1)(B).3 On July 29, 2013, the Magistrate Judge issued a Report and
Recommendation, recommending that the court dismiss Plaintiff’s Complaint under the IFP
statute for failure to state a claim upon which relief can be granted, and also recommending that
Plaintiff’s motions to appoint counsel and for service of process be deemed moot.4 On August 9,

1

Docket No. 7.

2

Docket No. 3.

3

Docket No. 5.

4

Docket No. 7 at page 9.

2013, Plaintiff timely filed an Objection to the Report and Recommendation.5
Under 28 U.S.C. § 636(b)(1)(B), a district court must make de novo determinations as to a
magistrate judge’s recommendations if a party objects to the magistrate’s recommendations. See
Phillips v. Beierwaltes, 466 F.3d 1217, 1222 (10th Cir. 2006). Accordingly, the court has
reviewed the entire record in this case, including Plaintiff’s Complaint, the Magistrate Judge’s
Report and Recommendation, and Plaintiff’s Objection. Having made a de novo review, the court
accepts in whole the findings and recommendations made by the Magistrate Judge and therefore
adopts the Report and Recommendation in its entirety.6
CONCLUSION
For the foregoing reasons, the court hereby APPROVES and ADOPTS the Magistrate
Judge's Report and Recommendation. Accordingly, the Complaint is DISMISSED with
prejudice, and Plaintiff’s Motion to Appoint Counsel [Docket No. 4] and his Motion for Service

5

Docket No. 8.

6

Plaintiff suggests that the Magistrate Judge was not neutral but rather was on the side of
the Defendants. See Docket No. 8, Objection at page 19. The court notes that Defendants have
not been served and had made no appearance in this lawsuit, and thus, the Magistrate Judge’s
review was based solely on the pleadings and documents filed by Plaintiff, along with the
relevant law. In drafting the Report and Recommendation, the Magistrate Judge merely
addressed the sufficiency of Plaintiff’s complaint under the authority of the IFP statute. See 28
U.S.C. § 1915(e)(2)(B)(ii). The Magistrate Judge recognized that “[d]ismissal of a pro se
complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot
prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.”
Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir. 2001) (quotations and citation omitted). This
court agrees with the Magistrate Judge’s recommendation that Plaintiff has not stated a claim
upon which relief could be granted, and it would be futile to give him an opportunity to amend.
2

of Process [Docket No. 6] are MOOT. The Clerk of Court is directed to close this case.
DATED this 23rd day of September, 2013.
BY THE COURT:

DALE A. KIMBALL
United States District Judge

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