Durand v. AccessCorrections.com

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA * * *

ROBERTO DURAND, Case No. 3:21-cv-00279-MMD-WGC Plaintiff, ORDER v.

ACCESSCORRECTIONS.COM,

Defendant.

Pro se Plaintiff Roberto Durand filed a civil rights complaint under 42 U.S.C. § 12 1983. (ECF No. 1-1.) Before the Court is the Report and Recommendation (“R&R” or “Recommendation”) of United States Magistrate Judge William G. Cobb (ECF No. 3), recommending that Durand’s application to proceed in forma pauperis (“IFP”) be granted and that his complaint be dismissed with prejudice. Durand had until August 20, 2021, to file an objection. To date, no objection to the R&R has been filed. For this reason, and as explained below, the Court adopts Judge Cobb’s R&R and will grant Durand’s IFP application and dismiss his complaint with prejudice.

The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party fails to object to a magistrate judge’s recommendation, the Court is not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1116 (9th Cir. 2003) (“De novo review of the magistrate judges’ findings and recommendations is required if, but only if, one or both parties file objections to the findings and recommendations.”) (emphasis in original); Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (providing that the Court “need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”).

Because there is no objection, the Court need not conduct de novo review, and is satisfied Judge Cobb did not clearly err. Here, Judge Cobb recommends that Durand’s IFP application be granted because his account statement indicates an average monthly balance for the past six months of $4.73, and his average monthly deposit was $16.67. (ECF No. 3 at 2.) Additionally, Judge Cobb recommends that Durand’s complaint be dismissed with prejudice as the named Defendant, AccessCorrections.com, is not a state actor and thus not subject to suit under § 1983. (/d. at 5.) The Court agrees with Judge Cobb. Having reviewed the R&R and the record in this case, the Court will adopt the R&R in full.

It is therefore ordered that Judge Cobb’s Report and Recommendation (ECF No. 3) is accepted and adopted in full.

It is further ordered that Plaintiff Roberto Durand’s application to proceed in forma pauperis (ECF No. 1) is granted. Durand is ordered to pay, through the Nevada Department of Corrections (“NDOC’), an initial partial filing fee in the amount of $3.33, within 30 days of the entry this order. Whenever Durand’s prison account exceeds $10.00, he is required to make monthly payments in the amount of 20% of the preceding month’s income credited to his account until the full $350.00 filing fee is paid. This is required even if the action is dismissed or is otherwise unsuccessful.

The Clerk of Court is directed to send a copy of this order to the attention of the Chief of Inmate Services for the Nevada Department of Corrections, P.O. Box 7011, Carson City, Nevada 89702.

The Clerk of Court is directed to file Durand’s complaint (ECF No. 1-1).

If is further ordered that Durand’s complaint (ECF No. 1-1) is dismissed with prejudice.

The Clerk of Court is directed to enter judgment accordingly and to close this case. DATED THIS 27" Day of August 2021. “A

J ( LL 2

CHIEF UN TED STATES DISTRICT JUDGE