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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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RYAN WOOD,

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Case No. 2:16-cv-00538-APG-PAL
Plaintiff,

v.
CLARK W. PATRICK, et al.,

ORDER ACCEPTING REPORT AND
RECOMMENDATION
(ECF No. 3)

Defendants.

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On March 16, 2017, Magistrate Judge Leen entered a Report of Findings and

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Recommendation recommending that I dismiss plaintiff Ryan Wood’s complaint with prejudice

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because Wood is asserting claims under 42 U.S.C. § 1983 against his criminal defense attorneys,

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who are not state actors. ECF No. 3. Wood did not file an objection. Thus, I am not obligated to

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conduct a de novo review of the report and recommendation. 28 U.S.C. § 636(b)(1) (requiring

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district courts to “make a de novo determination of those portions of the report or specified

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proposed findings to which objection is made”); United States v. Reyna-Tapia, 328 F.3d 1114,

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1121 (9th Cir. 2003) (en banc) (“the district judge must review the magistrate judge’s findings

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and recommendations de novo if objection is made, but not otherwise” (emphasis in original)).

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Judge Leen correctly states that Wood’s criminal defense attorneys are not state actors

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when acting as court-appointed defense counsel. Miranda v. Clark Cnty., Nev., 319 F.3d 465, 466

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(9th Cir. 2003) (citing Polk Cnty. v. Dodson, 454 U.S. 312 (1981)). There are circumstances

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when a private actor’s conduct may be fairly attributable to the government. See Franklin v. Fox,

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312 F.3d 423, 445 (9th Cir. 2002). But Wood does not assert any facts to suggest his defense

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attorneys’ conduct is attributable to the state.

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I therefore will accept Judge Leen’s recommendation that I dismiss Wood’s § 1983 claims

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with prejudice, but this dismissal is without prejudice to any state law claims Wood may seek to

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assert in another forum. Without a viable § 1983 claim, Wood does not allege a basis for this

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court to exercise subject matter jurisdiction in this case. From the face of the complaint, it

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appears diversity jurisdiction is lacking because both Wood and his attorneys are Nevada citizens.

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ECF No. 1-1.
IT IS THEREFORE ORDERED that Judge Leen’s Report of Findings and

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Recommendation (ECF No. 3) is accepted. The complaint (ECF No. 1-1) is dismissed with

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prejudice with respect to Woods’ claims under 42 U.S.C. § 1983, but without prejudice as to any

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state law claims Woods may assert in another forum. The clerk of court is instructed to close this

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case.

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DATED this 10th day of April, 2017.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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