Walters v. Vallani

Filing 26

ORDER that the 14 Report and Recommendation is Upheld in Full.Plaintiff's action is dismissed. Denying as moot 3 Motion to Dismiss. Signed by Judge Kent J. Dawson on 2/16/10. (Copies have been distributed pursuant to the NEF - AXM)

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 Currently before the Court is Defendant Michael Vallani's Motion to Dismiss (#3). Plaintiff filed a Response (#6). Subsequently, Plaintiff filed a Motion to Amend/Correct Complaint (#7), and a Motion for a Court Ordered Federal Grand Jury Inquiry (#8). Defendant filed a Motion to Strike (#9) Plaintiff's Motion for a Court Ordered Federal Grand Jury Inquiry, to which Plaintiff filed a Response (#10). On October 30, 2009, Magistrate Judge George Foley Jr. issued an Order and Findings and Recommendation (#14) granting Plaintiff's Motion to Amend Complaint, dismissing Plaintiff's Amended Complaint without prejudice, for failure to state a claim upon which relief can be granted, and giving Plaintiff thirty (30) days in which to file his second amended complaint if he was able to correct the noted deficiencies. (See Order and Findings at 9.) The Magistrate Judge also denied Plaintiff's Motion for a Court Ordered Grand Jury Inquiry, and Defendant's Motion to Strike. Additionally, the Magistrate Judge Recommended that Defendants Michael P. Vallani, Doe v. MICHAEL P. VALLANI, Defendant. GARY W. WALTERS, Plaintiff, Case No. 2:09-CV-00505-KJD-GWF ORDER

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

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Assistant Clark County District Attorneys and the State of Nevada be dismissed with prejudice due to Plaintiff's failure to state a claim upon which relief may be granted, and due to Defendants' immunity from civil rights claims under 42 U.S.C. § 1983. Additionally, the Magistrate Judge recommended that Defendant Michael P. Vallani's Motion to Dismiss be denied as moot. (Id.) Subsequent to the issuance of the Magistrate Judge's Order and Findings, Plaintiff filed a Motion to Stay (#16). The Court granted Plaintiff's Motion in part, denying his request for a stay, but alternatively granting him an extension of time in which to file objections to the Magistrate Judge's Findings and Recommendations pursuant to Local Rule IB 3-2. Plaintiff subsequently filed a Reply and Objections (#20) to the Magistrate Judge's Findings and Recommendation. For the reasons stated herein, the Court upholds the Magistrate Judge's Findings and Recommendation in full. I. Discussion According to Local Rule IB 3-2, the district judge makes a de novo determination of those portions of the specified findings and recommendations to which objections have been made. In this case, Plaintiff objects generally to the Magistrate Judge's Findings and Recommendations, stating that the Court is required to construe all allegations favorably to the pleader, and seeks that the Court review the arguments and authority raised in his Response to Defendant's dispositive Motion. (See Objections at 2.) Plaintiff avers inter alia that his Amended Complaint should not be dismissed, as each count asserts due process violations, and that he has properly asserted all claims necessary to overcome Defendants' immunity defense. Id. Specifically, Plaintiff's Objection raises the argument that Defendants are not immune from liability for alleged unconstitutional behavior that was part of a regulation or decision officially adopted by the agency. Id. at 3. Plaintiff neglects however, to provide any evidence of a policy or regulation that was officially adopted by any state agency or actor, or that caused Plaintiff's alleged harm. Moreover, as mentioned above, upon screening the Plaintiff's Amended Complaint pursuant to 28 U.S.C. § 1915A, the Magistrate Judge found the Complaint failed to state a claim for relief 2

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under Rule 12(b)(6), and failed due to Defendants' immunity from civil rights claims under 42 U.S.C. § 1983. Accordingly, the Amended Complaint was dismissed, without prejudice. The Court has reviewed the Magistrate Judge's Order, Findings, and Recommendation, and upholds his determination in full. Plaintiff's case was dismissed without prejudice, and Plaintiff was allowed thirty days in which to file a second amended complaint correcting the noted deficiencies. Plaintiff was warned that failure to do so would result in dismissal of his case. To date, Plaintiff has failed to file a second amended complaint, seeking instead to file general objections to the Magistrate Judge's findings and seeking that the Court revisit the arguments set forth in his Response to Defendant Vallani's dispositive Motion. Accordingly, IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation (#14) is upheld in full. IT IS FURTHER ORDERED that Plaintiff's action is dismissed. IT IS FURTHER ORDERED that Defendant Michael Vallani's Motion to Dismiss (#3) is denied as moot.

DATED this 16th day of February 2010.

____________________________________ Kent J. Dawson United States District Judge

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