Wood v. Patrick et al

Filing 4

ORDER. IT IS THEREFORE ORDERED that 3 Judge Leen's Report of Findings and Recommendation is accepted. The complaint 1 -1 is dismissed with prejudice with respect to Woods' claims under 42 U.S.C. § 1983, but without prejudice as to any state law claims Woods may assert in another forum. The clerk of court is instructed to close this case. Signed by Judge Andrew P. Gordon on 4/10/17. (Copies have been distributed pursuant to the NEF - ADR)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 RYAN WOOD, 5 6 7 8 Case No. 2:16-cv-00538-APG-PAL Plaintiff, v. CLARK W. PATRICK, et al., ORDER ACCEPTING REPORT AND RECOMMENDATION (ECF No. 3) Defendants. 9 10 On March 16, 2017, Magistrate Judge Leen entered a Report of Findings and 11 Recommendation recommending that I dismiss plaintiff Ryan Wood’s complaint with prejudice 12 because Wood is asserting claims under 42 U.S.C. § 1983 against his criminal defense attorneys, 13 who are not state actors. ECF No. 3. Wood did not file an objection. Thus, I am not obligated to 14 conduct a de novo review of the report and recommendation. 28 U.S.C. § 636(b)(1) (requiring 15 district courts to “make a de novo determination of those portions of the report or specified 16 proposed findings to which objection is made”); United States v. Reyna-Tapia, 328 F.3d 1114, 17 1121 (9th Cir. 2003) (en banc) (“the district judge must review the magistrate judge’s findings 18 and recommendations de novo if objection is made, but not otherwise” (emphasis in original)). 19 Judge Leen correctly states that Wood’s criminal defense attorneys are not state actors 20 when acting as court-appointed defense counsel. Miranda v. Clark Cnty., Nev., 319 F.3d 465, 466 21 (9th Cir. 2003) (citing Polk Cnty. v. Dodson, 454 U.S. 312 (1981)). There are circumstances 22 when a private actor’s conduct may be fairly attributable to the government. See Franklin v. Fox, 23 312 F.3d 423, 445 (9th Cir. 2002). But Wood does not assert any facts to suggest his defense 24 attorneys’ conduct is attributable to the state. 25 I therefore will accept Judge Leen’s recommendation that I dismiss Wood’s § 1983 claims 26 with prejudice, but this dismissal is without prejudice to any state law claims Wood may seek to 27 assert in another forum. Without a viable § 1983 claim, Wood does not allege a basis for this 28 1 court to exercise subject matter jurisdiction in this case. From the face of the complaint, it 2 appears diversity jurisdiction is lacking because both Wood and his attorneys are Nevada citizens. 3 ECF No. 1-1. IT IS THEREFORE ORDERED that Judge Leen’s Report of Findings and 4 5 Recommendation (ECF No. 3) is accepted. The complaint (ECF No. 1-1) is dismissed with 6 prejudice with respect to Woods’ claims under 42 U.S.C. § 1983, but without prejudice as to any 7 state law claims Woods may assert in another forum. The clerk of court is instructed to close this 8 case. 9 DATED this 10th day of April, 2017. 10 11 12 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 2 of 2

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