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 Magistrate Judge
William G. Cobb for using Plaintiff's name in two
screening orders in another case, which he contends violated
his constitutional rights. (ECF No. 1-1 at 1, 4; see
also ECF No. 5 at 5-6.) Plaintiff also submits an
application to proceed in forma pauperis (“IFP
Application”). (ECF No. 1.) Before the Court is the
Report and Recommendation (“R&R” or
“Recommendation”) of United States Magistrate
Judge Carla B. Carry (ECF No. 4) recommending that the Court
grant the IFP Application, dismiss the proposed Complaint,
assess a strike under 28 U.S.C. § 1915(g), and deny
Plaintiff's motion for summary judgment as moot.
Plaintiff filed an objection. (ECF No. 5.) The Court
overrules Plaintiff's objection and adopts the R&R in
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).
Court agrees with Judge Carry that Plaintiff's IFP
Application should be granted because he has shown that he
cannot pay the filing fee. (ECF No. 4 at 2.) Plaintiff
objects to Judge Carry's recommendation on the ground
that the IFP Application is a contract “entered into
based upon fraud.” (ECF No. 5 at 5.) The fraud
Plaintiff identifies relates to his belief that paper
currency is a debt and that “debt can't pay
debt.” (Id. at 5-6.) Regardless of
Plaintiff's beliefs, his Complaint cannot be filed unless
he pays the $350 filing fee, 28 U.S.C. § 1914, or
submits an IFP Application seeking court authorization to
commence a suit without prepayment of fees, see Id.
§ 1915. Plaintiff submitted an IFP Application that
shows he cannot pay the $350 filing fee. (ECF No. 1.)
Accordingly, Plaintiff's objection is overruled.
the Court agrees with Judge Carry that the Complaint should
be dismissed for failure to state a claim. First, Defendant
Judge Cobb is entitled to judicial immunity. (ECF No. 4 at
3-4.) Plaintiff objects that immunity does not apply here
(ECF No. 5 at 4-5), but his argument is unpersuasive.
Moreover, Plaintiff's Complaint lacks a legal cause of
action. Plaintiff alleges violations of his constitutional
rights (ECF No. 1-1 at 2) but contends he is not bringing his
lawsuit under 42 U.S.C. § 1983 (ECF No. 5 at 2). Indeed,
Plaintiff's Complaint does not allege a cause of action
under § 1983. (ECF No. 1-1 at 2.) Furthermore, §
1983 is the exclusive remedy for the constitutional
deprivations Plaintiff alleges in the Complaint.
Court also agrees with Judge Carry in assessing a strike
under 28 U.S.C. § 1915(g) based on Plaintiff's
failure to state a claim. (ECF No. 4 at 4.) Plaintiff fails to
state a claim because he has not identified a cause of action
and because Judge Cobb is entitled to judicial immunity.
While judicial immunity is an affirmative defense, see
Hiramanek v. Clark, No. C-13-0228 EMC, 2014 WL 107634,
at *7 (N.D. Cal. Jan. 10, 2014), that affirmative defense
appears on the face of the Complaint. Plaintiff identifies
Judge Cobb as a United States Magistrate Judge and explains
that his Complaint arises from Judge Cobb's judicial
orders. (See ECF No. 1-1 at 2-3.) Thus, it is
appropriate to assess a strike. See El-Shaddai v.
Zamora, 833 F.3d 1036, 1044 (9th Cir. 2016).
therefore ordered that Judge Carry's Report and
Recommendation (ECF No. 4) is adopted in full.
further ordered that Plaintiff's application to proceed
in forma pauperis (ECF No. 1) without having to
prepay the full filing fee is granted. The Clerk of Court is
instructed to file the Complaint. (ECF No. 1-1). 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. 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
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, 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 the Complaint (ECF No. 1-1) is dismissed
for failure to state a claim. Plaintiff is also assessed a
strike under 28 U.S.C. § 1915(g) based on that
further ordered that Plaintiff's motion for summary
judgment (ECF No. 3) is 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