United States District Court, D. Idaho
DANA L. ROSE, Plaintiff,
THE STATE OF IDAHO, 100 Defendants,
ORDER ON REPORT AND RECOMMEDNATION
J. LODGE UNITED STATES DISTRICT JUDGE.
August 15, 2016, Chief United States Magistrate Ronald E.
Bush issued a Report and Recommendation ("Report"),
recommending that Defendant's Motion to Dismiss and
Motion to Declare Plaintiff a Vexatious Litigant be granted.
(Dkt. 15.) Any party may challenge the Magistrate
Judge's proposed recommendation by filing written
objections within fourteen days after being served with a
copy of the Report. 28 U.S.C. § 636(b)(1)(C). The
district court must then "make a de novo determination
of those portions of the report or specified proposed
findings or recommendations to which objection is made."
Id. The district court may accept, reject, or modify
in whole or in part, the findings and recommendations made by
the Magistrate Judge. Id; see also Fed. R. Civ. P.
72(b). Plaintiff has filed a response, supplement, and a
reminder of constitutional guarantees. (Dkt. 17-19.) The
matter is ripe for this Court's consideration.
Fed.R.Civ.P. 72; Local Civ. R. 73.1.
to 28 U.S.C. § 636(b)(1)(C), this Court “may
accept, reject, or modify, in whole or in part, the findings
and recommendations made by the magistrate judge.”
Where the parties object to a report and recommendation, this
Court “shall make a de novo determination of those
portions of the report which objection is made.”
Id. Where, however, no objections are filed the
district court need not conduct a de novo review. To
the extent that no objections are made, arguments to the
contrary are waived. See Fed. R. Civ. P. 72; 28
U.S.C. § 636(b)(1) (objections are waived if they are
not filed within fourteen days of service of the Report and
Recommendation). “When no timely objection is filed,
the Court need only satisfy itself that there is no clear
error on the face of the record in order to accept the
recommendation.” Advisory Committee Notes to
Fed.R.Civ.P. 72 (citing Campbell v. United States Dist.
Court, 501 F.2d 196, 206 (9th Cir.1974)).
Court has conducted a de novo review of those
portions of the Report to which Plaintiff has objected. The
Court has also reviewed the entire Report as well as the
record in this matter for clear error on the face of the
record and finds as follows.
factual and procedural background of this case are accurately
stated in the Report and the Court adopts the same. (Dkt.
15.) This case concerns the Plaintiff's claims that the
State of Idaho, the Judges of Idaho, and the Idaho Department
of Corrections have violated his rights and otherwise abused
the legal process in regards to his 1999 criminal conviction.
(Dkt. 1.) Plaintiff seeks to have his conviction voided and
an award of damages. The State of Idaho filed its Motion to
Dismiss the Complaint upon four basis: failure to state a
claim, the claims are barred by the Eleventh Amendment, lack
of subject matter jurisdiction, and Plaintiff's failure
to comply with a 2007 pre-filing order. (Dkt. 3.) The Report
concludes dismissal is proper on all of the basis raised by
the State except for the last - the 2007 pre-filing order.
(Dkt. 15.) The Report further concludes the Plaintiff is
properly considered a vexatious litigant and recommends a
pre-filing order be entered. (Dkt. 15.)
“Response” to the Report states that this Court
has “no legal authority to render judgment” and
that the Defendants have not “denied any matter or
issue” and their only defense “has been to
falsify and concealing the material facts while denying
[Plaintiff] his constitutional guaranties.” (Dkt. 17)
(emphasis deleted). Plaintiff also filed a “Supplement
and Objection” raising several of the same allegations
and claims made in the Complaint. (Dkt. 18.) Most recently,
Plaintiff filed a “Reminder of the Constitutional
Guarantees Denied and/or Violated” reasserting his
claims of judicial misconduct, denial of his due process
rights, and other violations of his constitutional
guarantees. (Dkt. 19.)
preliminary matter, some of the Plaintiff's filings
allude to the fact that this Court should recuse itself
and/or “send this claim on to someone that has no
personal involvement.” (Dkt. 18, 19.) This Court finds
these filings have failed to demonstrate a basis
necessitating this Court's recusal from this matter. A
motion for recusal or disqualification of an allegedly biased
judge must be made timely and show bias. See 28
U.S.C. §§ 144, 455. The party asserting recusal
shall file a “sufficient affidavit that the judge
before whom the matter is pending has a personal bias or
prejudice either against him or in favor of any adverse
party....” 28 U.S.C. § 144. Such affidavit shall
“state the facts and the reasons for the belief that
bias or prejudice exists” and shall be made in good
faith. 28 U.S.C. § 144. The Court has reviewed the
record and finds there is neither bias nor resulting
prejudice by Judge Lodge in this case which warrant recusal.
Further, the Court has examined 28 U.S.C. § 455 and
finds nothing in this proceeding draws into question its
impartiality nor are there circumstances requiring that it be
disqualified. The Court is well within its discretion to
refer this matter to a Magistrate Judge. See 28
U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72.
the substance of the Plaintiff's claims and the
Report's recommendations, the Court has reviewed this
case de novo in light of the arguments made by the
Plaintiff in each of his filings, the Defendants briefing on
the Motions, and the entire record herein. Having done so,
this Court agrees with the Report's conclusion and
recommendations and adopts the same. For the reasons stated
in the Report, this Court finds that the allegations made in
the Complaint fail to state any plausible claim upon which
relief can be granted. Moreover, the claims made against the
State are barred by the Eleventh Amendment and this Court
lacks subject matter jurisdiction under the
Rooker-Feldman Doctrine. In reaching this
conclusion, the Court is mindful of the fact that the
Plaintiff is a pro se litigant. Nordstrom v.
Ryan, 762 F.3d 903, 908 (9th Cir. 2014); Blaisdell
v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013).
Court further agrees with the reasoning, analysis, and
recommendation of the Report that the Plaintiff be declared a
vexatious litigant. The Report correctly sets for the law
concerning this determination. Ringgold-Lockhart v. Cnty.
of Los Angeles, 761 F.3d 1057, 1061 (9th Cir. 2014)
(quoting De Long v. Hennessey, 912 F.2d 1144, 1147
(9th Cir. 1990)). This Court's own view of the record is
consistent with the conclusion reached in the Report and, for
the reasons stated therein, this Court too finds that the
Plaintiff is properly deemed a vexatious litigant and a
pre-filing order is necessary. The Court agrees with and
adopts the Report's recommendation that the pre-filing
order be narrowly tailored such that Plaintiff is prevented
from filing any action with claims relating to or concerning
his aggravated assault conviction, appeals, and sentence, or
any claim relating to a prior state or federal case arising
from his aggravated assault conviction, appeals, and
sentence. This restriction is properly tailored to address
Plaintiff's vexatious filings while not denying him his
right of access to the courts on claims that are not
THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation entered on August 15, 2016 (Dkt. 15) is
ADOPTED IN ITS ENTIRETY and the Defendants' Motion to
Dismiss and Motion to Declare Dana L. ...