McDermott v. Hayes et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DANIEL JOSEF MCDERMOTT,
Plaintiff,
v.
RON HAYES, et al.,
Defendants.
Case No. 3:21-cv-00274-SLG-SAO
ORDER RE SCREENING ORDER AND REPORT AND RECOMMENDATION
REGARDING COMPLAINT
Before the Court at Docket 11-1 is Plaintiff Daniel Josef McDermott’s
(“Plaintiff”) Prisoner’s First Amended Complaint Under the Civil Rights Act, 42
U.S.C. § 1983. This matter was referred to the Honorable Magistrate Judge Scott
A. Oravec. At Docket 15 Judge Oravec issued a Screening Order and Report and
Recommendation Regarding Complaint in which he recommended that this action
be dismissed with prejudice if Plaintiff does not file either a Second Amended
Complaint or Notice of Voluntary Dismissal on the Court’s form by July 25, 2022,
pursuant 	to 	28 	U.S.C. 	§ 	1915 	(a)(2)(B) 	and, 	that 	a 	dismissal 	under 	these
circumstances should 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).1
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
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Case No. 3:21-cv-00274-SLG-SAO
Order re Screening Order and Report and Recommendation Regarding Complaint
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No objections to the Screening Order and Report and Recommendation
Regarding Complaint were filed and Plaintiff has not filed a Second Amended
Complaint or a Notice of Voluntary Dismissal.
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 	Screening 	Order 	and 	Report 	and
Recommendation Regarding Complaint and agrees with its analysis. Accordingly,
the Court adopts the Report and Recommendation Regarding Complaint in its
entirety, and IT IS ORDERED that this action is DISMISSED WITH PREJUDICE
pursuant to 28 U.S.C. § 28 U.S.C. § 1915(e)(2)(B). This dismissal shall be counted
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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Case No. 3:21-cv-00274-SLG-SAO
Order re Screening Order and Report and Recommendation Regarding Complaint
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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). A final judgment shall be entered accordingly.
DATED this 31st day of August, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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