Prado v. State of Nevada Department of Health and Human Services

Filing 9

ORDER adopting 2 Report and Recommendation; Amended Complaint deadline: 60 days from date of this order. Signed by Judge Richard F. Boulware, II on 10/2/2018. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FREDERIC C. PRADO,

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Plaintiff,
v.

Case No. 2:16-cv-01182-RFB-VCF
ORDER ADOPTING REPORT &
RECOMMENDATION OF MAGISTRATE
JUDGE CAM FERENBACH

STATE OF NEVADA DEPARTMENT OF
HEALTH AND HUMAN SERVICES
DIVISION OF WELFARE AND
SUPPORTIVE SERVICES,
Defendant.

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Before the Court for consideration is the Report and Recommendation of the Honorable

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Cam Ferenbach, United States Magistrate Judge, entered June 2, 2016. ECF No. 2. For the reasons

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discussed below, the Report and Recommendation is adopted in full.

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A district 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). A party may file specific

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written objections to the findings and recommendations of a magistrate judge. 28 U.S.C.

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§ 636(b)(1); Local Rule IB 3-2(a). When written objections have been filed, the district court is

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required to “make a de novo determination of those portions of the report or specified proposed

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findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Local

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Rule IB 3-2(b). Where a party fails to object, however, a district court is not required to conduct

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“any review,” de novo or otherwise, of the report and recommendations of a magistrate judge.

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Thomas v. Arn, 474 U.S. 140, 149 (1985).

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Plaintiff filed his Application for Leave to Proceed in Forma Pauperis on May 26, 2016.

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ECF No. 1. Judge Ferenbach entered a Report and Recommendation on June 2, 2016, in which he

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ordered that the Application for Leave to Proceed in Forma Pauperis be granted and recommended

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that the ADA and negligence claims be dismissed without prejudice and the copyright claims be

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dismissed with prejudice. ECF No. 2. Plaintiff filed what is construed as an objection to the Report

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and Recommendation on June 16, 2016. ECF No. 4. Upon reviewing the pleadings and the Report

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and Recommendation, the Court agrees with Judge Ferenbach’s recommendations.

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Plaintiff’s disability discrimination claim fails because his factual allegations do not

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indicate that he was qualified to receive the public benefits he sought from the State. To prove a

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public program violated the ADA, a plaintiff must show (1) he is a qualified individual with a

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disability; (2) he was either excluded from participation in or denied the benefits of a public entity’s

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services, programs, or activities, or was otherwise discriminated against by the public entity; and

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(3) such exclusion, denial of benefits, or discrimination was by reason of his disability. Cohen v.

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City of Culver City, 754 F.3d 690, 95 (9th Cir. 2014). Plaintiff alleges the State did not issue bus

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passes to get to the doctor’s appointments, EBT food stamps, energy assistance, or Medicaid

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benefits. ECF No. 1. Plaintiff also states he was denied benefits because his household income was

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too high. Id. Documents attached to the Complaint evince Plaintiff’s income is, in fact, too high to

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receive the public benefits he seeks. ECF No. 1-3 at 9. Because Plaintiff does not qualify for the

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public benefits he seeks, Plaintiff has not alleged that he was denied benefits by reason of his

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disability. Plaintiff has leave to amend his Complaint to add factual allegations that would state a

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disability discrimination claim.

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Plaintiff’s negligence claim fails because he failed to allege the Department of Health and

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Human Services owed him a duty of care. A claim for negligence under Nevada law requires the

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Plaintiff allege: “(1) the existence of a duty of care; (2) breach of that duty, (3) legal causation,

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and (4) damages.” Sanchez ex rel. Sanchez v. Wal-Mart Stores, Inc., 221 P.3D 1276, 1281 (Nev.

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2009). Because he has not demonstrated the first element, Plaintiff has not stated a claim upon

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which relief can be granted. Plaintiff has leave to amend his Complaint to add factual allegations

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that would state a claim for negligence.

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Plaintiff’s claim of copyright infringement fails because its fanciful allegations render this

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claim frivolous. Plaintiff supports his claim for copyright infringement by stating satellites are

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“invading [his] privacy.” ECF No. 1. Plaintiff does not allege reproduction of his copyrighted

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work. The satellite interference theory is exactly the “delusional scenario” the Ninth Circuit has

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held to be frivolous. McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). Therefore, this claim

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is dismissed with prejudice.

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IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 2) is
ADOPTED in full.

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IT IS FURTHER ORDERED that the Plaintiff has 60 days from the date of this Order to

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file an Amended Complaint, or the Court will dismiss the ADA and negligence claims with

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prejudice.

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DATED this 2nd day of October, 2018.
___________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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