Andrew v. Doe et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
BASIL G. ANDREW,
Plaintiff,
v.
JOHN DOE, et al.,
Defendants.
Case No. 3:22-cv-00071-SLG-KFR
ORDER RE REPORT AND RECOMMENDATION TO DISMISS FOR FAILURE
TO PROSECUTE
On September 21, 2022, Magistrate Judge Kyle F. Reardon issued a
Screening Order in this matter dismissing the complaint without prejudice for failing
to state a claim upon which relief may be granted.1 Judge Reardon’s order also
deferred the Application to Waive Prepayment of the Filing Fee and required that
Plaintiff Andrew file an amended complaint or a notice of voluntary dismissal no
later than October 28, 2022, or this case could be dismissed with prejudice and
that this dismissal would constitute a 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).2
1 Docket 9.
2 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
physical injury.”
Case 3:22-cv-00071-SLG-KFR Document 11 Filed 12/16/22 Page 1 of 3

Case No. 3:22-cv-00071-SLG-KFR, Andrew v. Doe, et al.
Order re Report and Recommendation
Page 2 of 3
Mr. Andrew did not file a response to Judge Reardon’s order. On November 15,
2022, Judge Reardon issued a Report and Recommendation in which he
recommended that this case be dismissed without prejudice and that this dismissal
should constitute a strike to Plaintiff. No objections to the Report and
Recommendation were filed.
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.”3 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.”4
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.”5
The Court has reviewed the Report and Recommendation and agrees with
its analysis. Accordingly, the Court adopts the Report and Recommendation in its
entirety, and IT IS ORDERED that this action is DISMISSED WITHOUT
PREJUDICE. The application to waive prepayment of the filing fee is DENIED AS
3 28 U.S.C. § 636(b)(1).
4 Id.
5 Thomas v. Arn, 474 U.S. 140, 150 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003).
Case 3:22-cv-00071-SLG-KFR Document 11 Filed 12/16/22 Page 2 of 3

Case No. 3:22-cv-00071-SLG-KFR, Andrew v. Doe, et al.
Order re Report and Recommendation
Page 3 of 3
MOOT. This dismissal shall be a 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 16th day of December, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Case 3:22-cv-00071-SLG-KFR Document 11 Filed 12/16/22 Page 3 of 3