United States District Court, D. Nevada
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE.
Justin Odell Langford, who is in the custody of the Nevada
Department of Corrections (“NDOC”), brings this
action under 42 U.S.C. § 1983 against the Clerk of Court
for Clark County Steven D. Grierson for violation of the
Freedom of Information Act (“FOIA”). (ECF No. 1-2
at 1-2.) Plaintiff also submits an application to proceed in
forma pauperis (“IFP Application”). (ECF No. 1.)
For these reasons, the Court is required to screen
Plaintiff's proposed complaint under 28 U.S.C. §
1915A. Before the Court is the Report and Recommendation
(“R&R” or “Recommendation”) of
United States Magistrate Judge Carla B. Carry (ECF No. 6),
recommending that the Court grant the IFP Application but
dismiss the proposed complaint. Plaintiff filed an objection.
(ECF No. 7.) The Court overrules Plaintiff's objection.
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.” Id. 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 which no objections were made); see
also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D.
Ariz. 2003) (reading the Ninth Circuit's decision in
Reyna-Tapia as adopting the view that district
courts are not required to review “any issue that is
not the subject of an objection.”). Thus, if there is
no objection to a magistrate judge's recommendation, then
the Court may accept the recommendation without review.
See, e.g., Johnstone, 263 F.Supp.2d at 1226
(accepting, without review, a magistrate judge's
recommendation to which no objection was filed).
Carry recommends granting Plaintiff's IFP Application and
dismisses the complaint because Plaintiff cannot sue
Defendant, the clerk of court for a Nevada county, for
violation of FOIA when FOIA is a federal statute that applies
only to federal agencies. (ECF No. 7 at 4.) Plaintiff's
objection argues that the IFP Application “is a
contract to pay a debt for filing a case in this court . . .
[but the contract] is entered into based upon fraud.”
The Court agrees with Judge Carry that Plaintiff's IFP
Application should be granted because he has shown that he
cannot pay the filing fee and that his complaint should be
dismissed for failure to state a claim. Plaintiff argues the
IFP Application is fraudulent, but it is mandated by statute
and he has not challenged the constitutionality of the statue
nor does he have a basis to do so.
therefore ordered that Judge Carry's Report and
Recommendation (ECF No. 6) is adopted in full.
further ordered Plaintiff's IFP Application (ECF No. 1)
is granted without having to prepay the full filing fee.
Plaintiff will not be required to pay an initial installment
fee. Nevertheless, the full filing fee will still be due,
pursuant to 28 U.S.C. § 1915, as amended by the Prisoner
Litigation Reform Act (“PLRA”). Plaintiff is
permitted to maintain this action to conclusion without the
necessity of prepayment of fees or costs or the giving of
security therefor. This order granting in forma
pauperis status will not extend to the issuance and/or
service of subpoenas at government expense.
further ordered that, pursuant to 28 U.S.C. § 1915, as
amended by the PLRA, the NDOC must pay to the Clerk of the
United States District Court, District of Nevada, 20% of the
preceding month's deposits to the account of Justin Odell
Langford, #1159546 (in months that the account exceeds
$10.00) until the full $350 filing fee has been paid for this
action. The Clerk is instructed to send a copy of this order
to the attention of Chief of Inmate Services for the Nevada
Department of Prisons, P.O. Box 7011, Carson City, NV 89702.
further ordered that the Clerk of Court file Plaintiffs
proposed complaint (ECF No. 1-1).
further ordered that the complaint (ECF No. 1-1) is dismissed
for failure to state a claim.
further ordered that, even though this action will be
dismissed, the full filing fee will still be due, pursuant to
28 U.S.C. §1915, as amended by the PLRA.
further ordered that Plaintiffs motion for preliminary
injunction (ECF No. 3) and request for decision on the same
(ECF No. 5) are denied as moot.
Court certifies that any in forma pauperis appeal
from its order of dismissal would be frivolous or would not
be taken "in good faith" pursuant to 28 U.S.C.
Clerk of Court is directed to enter judgment in accordance