Gomez v. Moreno

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Eugenio Gomez, et al., No. CV-25-00541-TUC-BGM 10 Plaintiffs, ORDER 11 v. 12 Isa Moreno, 13 Defendant. 14 15 On October 31, 2025, Magistrate Judge Bruce G. Macdonald issued a Report and 16 Recommendation (“R&R”) in which he recommended the Court deny Plaintiffs Elizabeth 17 and Eugenio Gomez’s In Forma Pauperis (“IFP”) applications (Docs. 7–8) and dismiss 18 Plaintiffs’ Complaint (Doc. 1) without prejudice. The Magistrate Judge informed the 19 parties they had fourteen days to file objections and another fourteen days to respond. (Id. 20 at 3.) No timely objection was filed. On November 20, 2025, the Clerk’s Office set an 21 Order to Show Cause (“OSC”) hearing for January 13, 2026, at 11:30 a.m. because 22 Plaintiffs failed to either consent to the exercise of authority by the magistrate judge 23 under 28 U.S.C. § 636(c), or file a written election to have the action reassigned to a 24 district judge. (Doc. 11.) 25 Upon review, the Court will adopt the R&R in part, grant the IFP applications, 26 dismiss Plaintiffs’ Complaint, and vacate the OSC hearing. 27 I. STANDARD OF REVIEW 28 The standard of review of a magistrate judge’s R&R is dependent upon whether a 1 party objects: where there is no objection to a magistrate’s factual or legal 2 determinations, the district court need not review the decision “under a de novo or any 3 other standard.” Thomas v. Arn, 474 U.S. 140, 150 (1985). However, when a party 4 objects, the district court must “determine de novo any part of the magistrate judge’s 5 disposition that has been properly objected to. The district judge may accept, reject, or 6 modify the recommended disposition; receive further evidence; or return the matter to the 7 magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 8 636(b)(1). Moreover, “while the statute does not require the judge to review an issue de 9 novo if no objections are filed, it does not preclude further review by the district judge, 10 sua sponte or at the request of a party, under a de novo or any other standard.” Thomas, 11 474 U.S. at 154. 12 II. DISCUSSION 13 The Court has reviewed the two IFP applications (Docs. 7–8), the Complaint 14 (Doc. 1), and Judge Macdonald’s R&R (Doc. 9). The Court finds the R&R well-reasoned 15 and agrees with Judge Macdonald’s conclusions as to dismissal. However, the R&R does 16 not explain the reasoning for denying the IFP applications. Generally, parties who file an 17 action in federal district court must pay a filing fee. 28 U.S.C. § 1914(a). However, 28 18 U.S.C. § 1915 permits indigent plaintiffs to apply for a fee waiver. Before granting a 19 plaintiff leave to proceed in forma pauperis, the Court must decide whether the litigant is 20 truly unable to pay filing fees. 28 U.S.C. § 1915(a)(1); Lopez v. Smith, 203 F.3d 1122, 21 1126 (9th Cir. 2000). Good cause appearing, the Court will grant the IFP Applications. 22 Accordingly, IT IS ORDERED: 23 1.) Magistrate Judge Macdonald’s R&R is ADOPTED IN PART. (Doc. 9.) 24 2.) Plaintiffs’ IFP applications are GRANTED. (Docs. 7–8.) 25 3.) Plaintiffs’ Complaint is DISMISSED WITHOUT PREJUDICE for failure 26 to state a claim. (Doc. 1.) Should Plaintiffs believe they can remedy defects in 27 the Complaint, Plaintiffs may file a First Amended Complaint in 30 days from 28 the date this Order is filed. 1 4.) If Plaintiffs fail to file a First Amended Complaint within 30 days, the Clerk of 2 Court must, without further notice, enter a judgment of dismissal of this action 3 without prejudice. 4 5.) The Order to Show Cause Hearing, currently set for January 13, 2026, at 5 11:30 a.m. is VACATED. 6 Dated this 20th day of November, 2025. 7 N- ? Honorable Raner ©. Collins 10 merior United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-