Murphy v. Peters et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ALFRED G. MURPHY,
Plaintiff,
v.
JUDGE PETERS, et al.,
Defendants.
Case No. 4:22-cv-00008-SLG-KFR
ORDER RE SCREENING ORDER AND REPORT AND RECOMMENDATION
REGARDING COMPLAINT
Before the Court at Docket 1 is Plaintiff Alfred G. Murphy’s Prisoner’s
Complaint under the Civil Rights Act, 42 U.S.C. § 1983, and Mr. Murphy’s
application to waive prepayment of the filing fee at Docket 2. These matters were
referred to the Honorable Magistrate Judge Kyle F. Reardon. At Docket 5 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 should be denied as moot, 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
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Case No. 4:22-cv-00008-SLG-KFR, Murphy v. Judge Peters, et al.
Order re Screening Order and Report and Recommendation Regarding Complaint
Page 2 of 3
(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
amendment. The application to waive prepayment of the filing fee is DENIED AS
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
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-00008-SLG-KFR, Murphy v. Judge Peters, et al.
Order re Screening Order and Report and Recommendation Regarding Complaint
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).
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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