Grosscurth v. State Of Nevada

Filing 7

ORDER Declining to Adopt 5 Report and Recommendation. plaintiff will have until February 8, 2013, in which to file a correct and complete application to proceed in forma pauperis. Signed by Judge James C. Mahan on 1/23/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JOHN CHARLES GROSSCURTH,

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2:12-CV-375 JCM (CWH)

Plaintiff(s),
v.
STATE OF NEVADA, et al.,

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Defendant(s).

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ORDER
Presently before the court is the report and recommendation (doc. # 5) by Magistrate Judge
Hoffman. Plaintiff timely filed objections (doc. # 6).

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This court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Where a party timely objects to

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a magistrate judge’s report and recommendation, then the court is required to “make a de novo

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determination of those portions of the [report and recommendation] to which objection is made.”

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28 U.S.C. § 636(b)(1).

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The court undertakes a de novo review. Plaintiff filed an application to proceed in forma

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pauperis and a complaint. (See doc. # 1). He then filed an amended complaint. (Doc. # 2). The

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magistrate judge denied the application to proceed in forma pauperis without prejudice due to

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discrepancies in the application. (Doc. # 3). The magistrate judge gave a deadline date in the order

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to correct the deficiencies and warned plaintiff that failure to comply with the order would result in

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a recommendation that the application be denied with prejudice. (See id.).

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James C. Mahan
U.S. District Judge

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The clerk’s office mailed a new application to plaintiff. (See id.). The deadline date passed

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without plaintiff returning a corrected application. (Doc. # 5). The magistrate judge then issued a

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report and recommendation whereby he recommended dismissal of the application with prejudice

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for failing to correct the discrepancies or pay the filing fee. (See id.).

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Although plaintiff did not correct his application, he did file an objection to the report and

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recommendation. (Doc. # 6). Plaintiff alleges he never received in the mail the blank application

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form or the accompanying order (doc. # 3) that denied his application. (Doc. # 6 (“Plaintiff does not

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suggest that the Court failed to mail a notification, merely that he did not receive it.”)).

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The court notes at the outset that the defendant used the same address in all his filings with

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the court.1 All correspondence has been with the same address. The clerk’s office mailed both the

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order denying the in forma pauperis application (doc. # 3) and the report and recommendation (doc.

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# 5) to plaintiff’s listed address. Neither mailing was returned as undeliverable. Plaintiff cannot

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deny he received the latter mailing because he filed an objection with the court.

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In an abundance of fairness, the court will grant plaintiff a final opportunity to correct his in

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forma pauperis application.

It is important to note that plaintiff received the report and

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recommendation. The report and recommendation, like the order denying the application before it,

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lists the discrepancies contained in the in forma pauperis application. Therefore, plaintiff is

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undeniably on notice of the deficiencies in his application.

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The court will permit plaintiff a final opportunity to return a completed and corrected in

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forma pauperis application. If the plaintiff does return the application then the magistrate judge will

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conduct a final screening.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, DECREED that the court DECLINES to adopt

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the magistrate judge’s report and recommendation (doc. # 5) at this time because it was mooted by

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plaintiff’s allegations in the objection.

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...

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James C. Mahan
U.S. District Judge

That address is 569 Sellers Place, Henderson, NV, 89011.
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IT IS FURTHER ORDERED that the clerk of the court shall mail plaintiff a blank
application to proceed in forma pauperis.
IT IS FURTHER ORDERED that plaintiff will have until February 8, 2013, in which to file
a correct and complete application to proceed in forma pauperis.

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IT IS FURTHER ORDERED that if plaintiff does not return the application by February 8,

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2013, then the application to proceed in forma pauperis (doc. # 1) is denied with prejudice and the

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clerk of the court is to enter judgment and close the case.

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DATED January 23, 2013.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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