Duell v. O'Malley

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TODD ALAN DUELL, Case No.: 3:24-cv-0884-WQH-MMP 12 Petitioner, ORDER 13 v. 14 MARTIN O’MALLEY, Commissioner of Social Security Administration, 15 Respondent. 16 17 HAYES, Judge: 18 The matter before the Court is the Report and Recommendation issued by United 19 States Magistrate Judge Michelle M. Pettit. (ECF No. 3.) 20 On May 16, 2024, Petitioner Todd Alan Duell (“Petitioner”), proceeding pro se, filed 21 a Petition of Writ of Mandamus (“Petition”) against Respondent Martin O’Malley, 22 Commissioner of Social Security Administration, requesting the Court issue a writ of 23 mandamus to Respondent “directing the Commissioner to immediately fulfill his 24 nondiscretionary duty to Petitioner.” (ECF No. 1 at 6.) The same day, Petitioner filed an 25 Application to Proceed In Forma Pauperis. (ECF No. 2.) 26 On October 11, 2023, Judge Pettit issued a Report and Recommendation with respect 27 to the Application to Proceed In Forma Pauperis. (ECF No. 3.) Judge Pettit stated: 28 “Petitioner’s sworn affidavit indicates he has no income except $290 per month in public 1 assistance benefits, no employer, no financial accounts, and no assets. Petitioner attests that 2 he has no monthly expenses. The Court does not find it credible that Petitioner has no 3 expenses whatsoever, and Petitioner provides no explanations for the lack of expenses. 4 Accordingly, Petitioner has not alleged with sufficient certainty he would be unable to 5 afford the necessities of life should he be required to pay the requisite filing fee.” Id. at 2. 6 Judge Pettit recommended that this Court deny Petitioner’s Application to Proceed In 7 Forma Pauperis, dismiss the Petition pursuant to 28 U.S.C. § 1914(a), and grant Petitioner 8 forty-five (45) days to pay the requisite filing fees or file a new application to proceed in 9 forma pauperis providing full and accurate information regarding his finances. Id. at 3. 10 On July 15, 2024, Petitioner filed an Affidavit in Support of In Forma Pauperis, 11 which the Court liberally construes as an Objection to the Report and Recommendation. 12 (ECF No. 4.) 13 The duties of the district court in connection with a report and recommendation of a 14 magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. 15 § 636(b). The district judge must “make a de novo determination of those portions of the 16 report ... to which objection is made,” and “may accept, reject, or modify, in whole or in 17 part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b). The 18 district court need not review de novo those portions of a report and recommendation to 19 which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); 20 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“Neither the 21 Constitution nor the [Federal Magistrates Act] requires a district judge to review, de novo, 22 findings and recommendations that the parties themselves accept as correct.”). 23 Here, Petitioner’s Objection states: “I have already IFP approved for case 3:24-cv- 24 00654-RBM-DDL as the Petitioner. I respectfully request that this Court honor the existing 25 IFP in this Court and issue IFP for this case.” (ECF No. 4 at 1–2.) A review of the docket 26 in Duell Family Trust v. Donna May Duell Trust, S.D. Cal. Case No. 3:24-cv-00654-RBM- 27 DDL, indicates that a motion for leave to proceed in forma pauperis remains pending and 28 has not been ruled upon by the judge in that case. In any event, any motion to proceed to 1 ||in forma pauperis in this case must be complete in itself and may not rely upon filings in 2 ||other cases. In the Report and Recommendation, Judge Pettit recommended that the 3 || Application to Proceed In Forma Pauperis be denied on the ground that Petitioner “has not 4 || alleged with sufficient certainty he would be unable to afford the necessities of life should 5 || he be required to pay the requisite filing fee.” (ECF No. 3 at 2.) Petitioner’s Objection does 6 address this deficiency. Accordingly, the Court overrules the Objection to the Report 7 ||and Recommendation. After conducting a review of the Report and Recommendation, the 8 || Court finds it correct and adopts the Report and Recommendation in its entirety. 9 IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 3) is 10 || adopted in its entirety. 11 IT IS FURTHER ORDERED that Petitioner’s Objection (ECF No. 4) is overruled. 12 IT IS FURTHER ORDERED that the Application to Proceed In Forma Pauperis 13 || (ECF No. 2) is denied without prejudice. 14 IT IS FURTHER ORDERED that the Petition is dismissed without prejudice for 15 ||failure to prepay the filing fee mandated by 28 U.S.C. § 1914(a). The Court grants 16 || Petitioner forty-five (45) days from the date this Order is entered to either (1) pay the 17 requisite filing fees or (2) file a new application to proceed in forma pauperis providing 18 || full and accurate information regarding his finances. If Petitioner fails to pay the filing fee 19 || or file a new application to proceed in forma pauperis, the Court will direct the Clerk of 20 || the Court to close this case. 21 ||Dated: September 17, 2024 itt Z. A a 22 Hon. William Q. Hayes 3 United States District Court 24 25 26 27 28 3 oe □□