Smith v. Hoss et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
STANLEY E. SMITH,
Plaintiff,
v.
JUDGE TERRENCE HASS, et al.,
Defendants.
Case No. 4:22-cv-00007-SLG-KFR
ORDER RE SCREENING ORDER AND REPORT AND RECOMMENDATION
REGARDING COMPLAINT
Before the Court at Docket 1 is Plaintiff Stanley E. Smith’s Prisoner’s
Complaint under the Civil Rights Act, 42 U.S.C. § 1983, and Mr. Smith’s Prisoner’s
Application to Waive Prepayment of the Filing Fee at Docket 3. Mr. Smith
subsequently filed an untitled motion that requests counsel, his release from
custody, and to have his charges dismissed at Docket 5, and a Motion to Amend
his Complaint at Docket 6. These matters were referred to the Honorable
Magistrate Judge Kyle F. Reardon. At Docket 8, Judge Reardon issued a
Screening Order and Report and Recommendation Regarding Complaint in which
he recommended that this action be dismissed with prejudice because the
complaint failed to state a claim upon which relief may be granted and the futility
of amendment, that all pending motions be denied as moot, and that a dismissal
under these circumstances should be a strike as required by 28 U.S.C. § 1915(g)
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Case No. 4:22-cv-00007-SLG-KFR, Smith v. Judge Hass, et al.
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and Lomax v. Ortiz-Marquez, et al. 590 U.S. ___, 140 S.Ct. 172 (2020).1 No
objections to the Screening Order and Report and Recommendation Regarding
Complaint 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.”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
for failing to state a claim upon which relief may be granted and the futility of
1 28 U.S.C. § 1915(g) prohibits a prisoner who files more than three actions or appeals in any
federal court in the United States which 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.”
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. 4:22-cv-00007-SLG-KFR, Smith v. Judge Hass, et al.
Order re Screening Order and Report & Recommendation Regarding Complaint
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amendment. The application to waive prepayment of the filing fee at Docket 3, the
untitled motion at Docket 5, and the motion to amend the complaint at Docket 6
are each DENIED AS MOOT. This dismissal shall be counted 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).
The Clerk of Court shall enter a final judgment accordingly.
DATED this 16th day of August, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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