United States District Court, D. Arizona
Honorable David C. Bury United States District Judge
matter was referred to Magistrate Judge Bruce G. Macdonald on
June 6, 2016. Pursuant to the Rules of Practice for the
United States District Court, District of Arizona (Local
Rules), Rule (Civil) 72.1(a), Magistrate Judge Macdonald
issued a Report and Recommendation (R&R) on January 27,
2017. (R&R (Doc. 21)). He recommends
granting the Defendant's Motion to Dismiss.
duties of the district court, when reviewing an R&R of a
Magistrate Judge, are set forth in Rule 72 of the Federal
Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The
district court may “accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. §
636(b)(1). When the parties object to an R&R,
“‘[a] judge of the [district] court shall make a
de novo determination of those portions of the
[R&R] to which objection is made.'” Thomas
v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C.
§ 636(b)(1)). When no objections are filed, the district
court does not need to review the R&R de novo.
Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th
Cir.2005); United States v. Reyna-Tapia, 328 F.3d
1114, 1121-22 (9th Cir.2003) (en banc).
parties were sent copies of the R&R and instructed they
had 14 days to file written objections. 28 U.S.C. §
636(b), see also, Federal Rule of Criminal Procedure
72 (party objecting to the recommended disposition has
fourteen (14) days to file specific, written objections). The
Plaintiff has not filed an objection.
Honorable Bruce G. Macdonald considered whether Plaintiff
states a due process claim and whether she may seek a
declaratory judgment that she is entitled to have her legal
representation in CV 13-295 TUC JGZ paid for by the Bureau of
Prison (BOP), pursuant to 28 U.S.C. §§ 516-517, 28
C.F.R. § 50.15. The Magistrate Judge agreed with the
Government that the Plaintiff has no due process right to be
provided individual-capacity representation because Section
50.15 is permissive. (R&R (Doc. 21) at 5-6.) Therefore,
the Plaintiff may not seek injunctive relief to reverse the
Government's discretionary decision to deny her request
for representation in the civil damage suit brought against
her and other BOP employees by a prisoner arising out of
events, including an alleged rape and sexual assault, that
transpired at BOP's Tucson Federal Penitentiary. The BOP
declined to accept her defense, but is defending the other
BOP employees. The Magistrate Judge agreed with the
Government that her claims brought under the Administrative
Procedures Act (APA) must be dismissed because the APA does
not apply when “‘agency action is committed to
agency discretion by law.'” (R&R (Doc. 21) at
7-9 (quoting 5 U.S.C. § 701(a)(2)). And, the Magistrate
Judge rejected Plaintiff's equal protection claim because
she fails to assert any facts suggesting she is a member of
“‘a protected or suspect class or otherwise
suffers the unequal burdening of a fundamental
right.'” Id. at 9.
Magistrate Judge recommends dismissal without leave to amend.
He found, and the Court agrees, that there is no set of facts
that could cure the deficiencies found in the Plaintiffs
Complaint. The Court notes that the Plaintiff has failed to
assert otherwise by objection to the R&R.
being no Objection, review has been waived, but the Court
nevertheless reviews at a minimum, de novo, the
Magistrate Judge's conclusions of law. Robbins v.
Carey, 481 F.3d 1143, 1147 (9th Cir. 2007)
(citing Turner v. Duncan, 158 F.3d 449, 455
(9th Cir. 1998) (conclusions of law by a
magistrate judge reviewed de novo); Martinez v.
Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991)
(failure to object standing alone will not ordinarily waive
question of law, but is a factor in considering the propriety
of finding waiver)). The Court finds the R&R to be
thorough and well-reasoned, without any clear error in law or
fact. See United States v. Remsing, 874 F.2d 614,
617-618 (9th Cir. 1989) (United States v. Remsing,
874 F.2d 614, 617-618 (9th Cir. 1989) (citing 28 U.S.C.
§ 636(b)(1)(A) as providing for the district court to
reconsider matters delegated to magistrate judge when there
is clear error or recommendation is contrary to law). The
Court accepts and adopts the R&R as the opinion of the
Court, pursuant to 28 U.S.C. § 636(b)(1). For the
reasons stated in the R&R, the Court grants the
Defendant's Motion to Dismiss.
IT IS ORDERED that the Report and Recommendation (Doc. 21) is
adopted as the opinion of the Court.
FURTHER ORDERED that the Motion to Dismiss (Doc. 12) is
FURTHER ORDERED that the Clerk of the Court shall ...