Kone v. Andrew et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
TIDIANE KONE,
Plaintiff,
v.
SHANTELL ANDREW, et al.,
Defendants.
Case No. 3:22-cv-00138-SLG-KFR
ORDER RE REPORT AND RECOMMENDATION TO DISMISS
Before the Court at Docket 10 is Plaintiff Tidiane Kone’s Prisoner’s Amended
Complaint under the Civil Rights Act, 42 U.S.C. § 1983, a Motion for Leave to
Proceed In Forma Pauperis at Docket 3, a Second Motion for Leave to Proceed In
Forma Pauperis at Docket 4, a Motion for Order to Show Cause at Docket 6, and
a Motion for Enforcing a Judgment for a Specific Act at Docket 8. These matters
were referred to the Honorable Magistrate Judge Kyle F. Reardon. At Docket 12
Judge Reardon issued a Report and Recommendation to Dismiss, in which he
recommended that this action be dismissed without prejudice for failing to state a
claim upon which relief may granted, that all pending motions denied as moot, and
that this dismissal count as 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).1 No objections to the
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-00138-SLG-KFR Document 14 Filed 10/13/22 Page 1 of 3

Case No. 3:22-cv-00138-SLG-KFR, Kone v. Andrew, et al.
Order re Report and Recommendation to Dismiss
Page 2 of 3
Report and Recommendation to Dismiss were filed. However, at Docket 13, Mr.
Kone filed a Motion for Constitutional Challenge to a Statute in this case, in which
he identifies six new individuals as defendants, all of whom appear to be
employees of the Child Support Enforcement Division, and states that he now
intends to procced without the two currently named defendants, Bernice
Hernandez and Shantell Andrew.
With respect to the newly filed motion at Docket 13, it is DENIED without
prejudice. If Mr. Kone seeks to bring an action against these newly named
defendants, he must file a complaint against them and initiate a new case. He
cannot maintain such an action in this case.
With respect to the action that was brought against Bernice Hernandez and
Shantell Andrew, that 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
physical injury.”
2 28 U.S.C. § 636(b)(1).
3 Id.
Case 3:22-cv-00138-SLG-KFR Document 14 Filed 10/13/22 Page 2 of 3

Case No. 3:22-cv-00138-SLG-KFR, Kone v. Andrew, et al.
Order re Report and Recommendation to Dismiss
Page 3 of 3
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 and
agrees with its analysis. Accordingly, the Court adopts the Report and
Recommendation to Dismiss in its entirety, and IT IS ORDERED that this action is
DISMISSED WITHOUT PREJUDICE for failing to state a claim upon which relief
may be granted. All pending motions are DENIED AS 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).
The Clerk of Court shall enter a final judgment accordingly.
DATED this 13th day of October, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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).
Case 3:22-cv-00138-SLG-KFR Document 14 Filed 10/13/22 Page 3 of 3