United States District Court, D. Kansas
D. CRABTREE, UNITED STATES DISTRICT JUDGE
February 10, 2017, Magistrate Judge K. Gary Sebelius issued a
Report and Recommendation (Doc. 9), recommending dismissal of
this lawsuit under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii)
because it is frivolous and fails to state a claim upon which
relief may be granted.
Judge Sebelius explained, his Report and Recommendation
provided plaintiff with the right to file objections to the
Report and Recommendation under 28 U.S.C. § 636(b)(1)
and Federal Rule of Civil Procedure 72, within 14 days after
service. Doc. 9 at 8. He also advised plaintiff that failing
to make a timely objection to the Report and Recommendation
would waive any right to appellate review of the proposed
findings of fact, conclusions of law, and recommended
disposition. See Id. (explaining that “[i]f no
objections are timely filed, no appellate review will be
allowed by any court”). The Clerk sent a copy of the
Report and Recommendation to plaintiff by both regular and
certified mail. See Docket Entry for Doc. 9
(“Copies of this order were sent to plaintiff by both
regular mail and by certified mail (tracking no. 7010 2780
of the Report and Recommendation was accomplished by
“mailing it to [plaintiff's] last known address-in
which event service [was] complete upon mailing.”
Fed.R.Civ.P. 5(b)(2)(C); ReVoal v. Brownback, No.
14-4076, 2014 WL 5321093, at *1 (D. Kan. Oct. 16, 2014).
“Mailing” occurred on February 10, 2017, when the
Clerk mailed the Report and Recommendation to plaintiff.
See Doc. 9. The time for plaintiff to file
objections to the Report and Recommendation thus has expired.
February 14, 2017, plaintiff filed a document he titled
“Notice of Invalid Procedure.” Doc. 10. In this
Notice, plaintiff states:
I filed for three Judge Court and accept this order as
subterfuge settlement out of court. I take on all Trump
selections as void. His debate conduct voided Election on
technicality. $60 trillion.
Was refused: Take judicial notice of procedure previously on
Demand presence of DOJ. L. Lynch as witness in the above uses
filed before election to recall.
Id. The court construes plaintiff's reference to
“this order, ” as referring to Judge
Sebelius's Report and Recommendation. The court thus
understands plaintiff's Notice of Invalid Procedure as a
timely objection to that Report and Recommendation.
plaintiff has objected to Judge Sebelius's Report and
Recommendation, the court “must determine de novo any
part of the magistrate judge's disposition that has been
properly objected to.” Fed.R.Civ.P. 72(b)(3); see
also 28 U.S.C. § 636(b)(1) (“A judge of the
court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations
to which objection is made.”). After making this
determination, the court “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge . . . [or] may also receive
further evidence or recommit the matter to the magistrate
judge with instructions.” 28 U.S.C. § 636(b)(1).
Report and Recommendation to be “properly objected to,
” plaintiff's objection must “be both timely
and specific.” United States v. One Parcel of Real
Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). An objection
is sufficiently specific if it “focus[es] the district
court's attention on the factual and legal issues that
are truly in dispute.” Id. If plaintiff fails
to make such a proper objection, then he fails to preserve
the objection for appellate review. Id.
explained above, plaintiff's objection was timely, so the
court need only consider whether his objection is
sufficiently specific to warrant de novo review of Judge
Sebelius's Report and Recommendation. Because plaintiff
brings this lawsuit pro se, the court construes his pleadings
liberally and holds them to a less stringent standard than
formal pleadings drafted by lawyers. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the
court cannot assume the role of plaintiff's advocate and
plaintiff's pro se status does not excuse him from
“the burden of alleging sufficient facts on which a
recognized legal claim could be based.” Id.
Nor is plaintiff relieved from complying with the rules of
the court or facing the consequences of noncompliance.
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
and liberally construing plaintiff's Complaint, the court
agrees with Judge Sebelius's conclusion that
plaintiff's Complaint is frivolous and fails to state a
claim. Plaintiff's only objection to Judge Sebelius's
Report and Recommendation appears to be that a three-judge
court did not issue it. But plaintiff provides no basis-in
either his Complaint or objection-for assigning a three-judge
court. See Blaurock v. Kansas, No. 12-3066-SAC, 2012
WL 6681876, at *1 (D. Kan. Dec. 21, 2012) (explaining that a
three-judge court is not available under 28 U.S.C. §
2284 “where no Act of Congress requires a panel of
three district court judges to review the allegations set
forth in [the] plaintiff's . . . complaint, and [the]
plaintiff is not challenging the constitutionality of the
apportionment of congressional districts or any state
legislative body”). The court thus agrees with Judge
Sebelius and accepts, adopts, and affirms his Report and
Recommendation in its entirety.
THEREFORE ORDERED THAT plaintiff's Notice of Invalid
Procedure (Doc. 10) is overruled and the court adopts Judge
Sebelius's Report and Recommendation ...