Crain v. Clark County Public Defender et al

Filing 10

REPORT AND RECOMMENDATION to DISMISS case with prejudice for failure to state a cognizable claim re 5 MOTION for Magistrate Judge to Reconsider Magistrate Judge Order re 4 Order on Motion. Objections to R&R due by 11/25/2009 Signed by Magistrate Judge Lawrence R. Leavitt on 11/9/09. (Copies have been distributed pursuant to the NEF - EDS)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 STEVEN CRAIN, UNITED STATES DISTRICT COURT DISTRICT OF NEVADA *** ) ) Plaintiff, ) ) v. ) ) CLARK COUNTY PUBLIC DEFENDER, et al., ) ) Defendants.. ) )

2:09-cv-00283-RCJ-LRL PETITION FOR REVIEW (#5)

REPORT & RECOMMENDATION
Before the court is plaintiff's second "Petition for Review" (#5), which is plaintiff's response to this court's order dismissing without prejudice plaintiff's first "Petition for Review" (#1). BACKGROUND This case is plaintiff Steven Crain's second attempt to file a case against the named defendants in federal court. Crain previously filed a complaint against defendants on June 24, 2008. See 2:08-cv00818-KJD-PAL. On November 26, 2008, the Honorable Kent J. Dawson, U.S. District Judge, entered judgment in favor of all defendants and against Crain in that case. Order (#44). Crain immediately appealed the order to the Ninth Circuit Court of Appeals, which treated the appeal as a writ of mandamus and summarily dismissed the petition on January 22, 2009. Order (#52). Shortly thereafter, on February 11, 2009, Crain initiated the case now before the court against many of the same defendants ­ some of whom had been dismissed from the earlier action before judgment was entered. Upon review of plaintiff's first "Petition for Review (#1) in this case, it was unclear whether plaintiff intended to file a habeas corpus petition pursuant to 28 U.S.C. § 2242 or a complaint pursuant to the Federal Rules of Civil Procedure. Order (#4). Accordingly, plaintiff's "Petition for Review" (#1)

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was dismissed without prejudice to cure the deficiencies in his petition and refile it; specifically, the court noted that plaintiff "fail[ed] to articulate the relief sought and the legal grounds in support thereof." Plaintiff was ordered to file either a habeas corpus petition or a complaint by June 19, 2009. The court warned that failure to do so may result in plaintiff's case being dismissed. DISCUSSION To date, plaintiff has filed neither a habeas petition nor an amended complaint. Instead he filed another "Petition for Review." While the second "Petition" (#5) conveys Crain's deep dismay and disappointment with the court ­ particularly with this court's order to dismiss without prejudice ­ the filing is not responsive to this court's Order (#4). Rather, in expressing his ire with the court, Crain makes fresh allegations against an entirely different set of individuals than the defendants named in the caption. The second Petition (#5) doesn't address, much less cure, the deficiencies in the first Petition (#1), nor does it even relate to the substance of the first Petition (#1). RECOMMENDATION Based on the foregoing, it is the recommendation of the undersigned United States Magistrate Judge that Steven Crain's Case No. 09-cv-00283-RCJ-LRL be dismissed with prejudice for failure to state a cognizable claim. DATED this 9th day of November, 2009.

LAWRENCE R. LEAVITT UNITED STATES MAGISTRATE JUDGE

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