McDermott v. Miller et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DANIEL JOSEF MCDERMOTT,
Plaintiff,
v.
WAYNE MILLER, et al.,
Defendants.
Case No. 3:22-cv-00046-SLG-SAO
ORDER RE REPORT AND RECOMMENDATION TO DISMISS FOR FAILURE
TO PROSECUTE
On July 15, 2022, at Docket 8, Magistrate Judge Scott A. Oravec issued a
Screening Order instructing Plaintiff Daniel Josef McDermott to file an Amended
Complaint or a Notice of Voluntary Dismissal by August 16, 2022, or risk dismissal
of this case. Plaintiff did not respond to the Court’s order. On September 27, 2022,
Judge Oravec issued a Report and Recommendation to Dismiss for Failure to
Prosecute in which he recommended that this action be dismissed without
prejudice, that all pending motions be denied as moot, and that this dismissal
constitute a second strike to Plaintiff as required by 28 U.S.C. § 1915(g) and Lomax
v. Ortiz-Marquez, et al. 590 U.S. ___, 140 S.Ct. 172 (2020).1 Plaintiff did not file a
response to the report.
1 28 U.S.C. § 1915(g) prohibits a prisoner who has filed more than three actions or appeals in any
federal court in the United States that are dismissed as frivolous or malicious or for failure to state
a claim upon which relief may be granted, from bringing any other actions without prepayment of
fees unless the prisoner can demonstrate that he or she is in “immediate danger of serious
Case 3:22-cv-00046-SLG-SAO Document 11 Filed 10/27/22 Page 1 of 2

Case No. 3:22-cv-00046-SLG-SAO, McDermott v. Miller, et al.
Order re Report and Recommendation to Dismiss for Failure to Prosecute
Page 2 of 2
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That
statute provides that a district court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.”2 A court is
to “make a de novo determination of those portions of the magistrate judge’s report
or specified proposed findings or recommendations to which objection is made.”3
However, § 636(b)(1) does not “require district court review of a magistrate’s
factual or legal conclusions, under a de novo or any other standard, when neither
party objects to those findings.”4
The Court has reviewed the Report and Recommendation to Dismiss for
Failure to Prosecute and agrees with its analysis. Accordingly, the Court adopts
the report in its entirety, and IT IS ORDERED that this action is DISMISSED
WITHOUT PREJUDICE for failure to prosecute. All pending motions in this matter
are DENIED AS MOOT. This dismissal shall be a second STRIKE as required by
28 U.S.C. § 1915(g) and Lomax v. Ortiz-Marquez, et al. 590 U.S. ___, 140 S.Ct.
172 (2020).
DATED this 27th day of October, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
physical injury.”
2 28 U.S.C. § 636(b)(1).
3 Id.
4 Thomas v. Arn, 474 U.S. 140, 150 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003).
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