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)
1
2
3
4
UNITED STATES DISTRICT COURT
5
DISTRICT OF NEVADA
6
***
7
FREDERIC C. PRADO,
8
9
10
11
12
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.
13
14
Before the Court for consideration is the Report and Recommendation of the Honorable
15
Cam Ferenbach, United States Magistrate Judge, entered June 2, 2016. ECF No. 2. For the reasons
16
discussed below, the Report and Recommendation is adopted in full.
17
A district court “may accept, reject, or modify, in whole or in part, the findings or
18
recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). A party may file specific
19
written objections to the findings and recommendations of a magistrate judge. 28 U.S.C.
20
§ 636(b)(1); Local Rule IB 3-2(a). When written objections have been filed, the district court is
21
required to “make a de novo determination of those portions of the report or specified proposed
22
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Local
23
Rule IB 3-2(b). Where a party fails to object, however, a district court is not required to conduct
24
“any review,” de novo or otherwise, of the report and recommendations of a magistrate judge.
25
Thomas v. Arn, 474 U.S. 140, 149 (1985).
26
Plaintiff filed his Application for Leave to Proceed in Forma Pauperis on May 26, 2016.
27
ECF No. 1. Judge Ferenbach entered a Report and Recommendation on June 2, 2016, in which he
28
ordered that the Application for Leave to Proceed in Forma Pauperis be granted and recommended
1
that the ADA and negligence claims be dismissed without prejudice and the copyright claims be
2
dismissed with prejudice. ECF No. 2. Plaintiff filed what is construed as an objection to the Report
3
and Recommendation on June 16, 2016. ECF No. 4. Upon reviewing the pleadings and the Report
4
and Recommendation, the Court agrees with Judge Ferenbach’s recommendations.
5
Plaintiff’s disability discrimination claim fails because his factual allegations do not
6
indicate that he was qualified to receive the public benefits he sought from the State. To prove a
7
public program violated the ADA, a plaintiff must show (1) he is a qualified individual with a
8
disability; (2) he was either excluded from participation in or denied the benefits of a public entity’s
9
services, programs, or activities, or was otherwise discriminated against by the public entity; and
10
(3) such exclusion, denial of benefits, or discrimination was by reason of his disability. Cohen v.
11
City of Culver City, 754 F.3d 690, 95 (9th Cir. 2014). Plaintiff alleges the State did not issue bus
12
passes to get to the doctor’s appointments, EBT food stamps, energy assistance, or Medicaid
13
benefits. ECF No. 1. Plaintiff also states he was denied benefits because his household income was
14
too high. Id. Documents attached to the Complaint evince Plaintiff’s income is, in fact, too high to
15
receive the public benefits he seeks. ECF No. 1-3 at 9. Because Plaintiff does not qualify for the
16
public benefits he seeks, Plaintiff has not alleged that he was denied benefits by reason of his
17
disability. Plaintiff has leave to amend his Complaint to add factual allegations that would state a
18
disability discrimination claim.
19
Plaintiff’s negligence claim fails because he failed to allege the Department of Health and
20
Human Services owed him a duty of care. A claim for negligence under Nevada law requires the
21
Plaintiff allege: “(1) the existence of a duty of care; (2) breach of that duty, (3) legal causation,
22
and (4) damages.” Sanchez ex rel. Sanchez v. Wal-Mart Stores, Inc., 221 P.3D 1276, 1281 (Nev.
23
2009). Because he has not demonstrated the first element, Plaintiff has not stated a claim upon
24
which relief can be granted. Plaintiff has leave to amend his Complaint to add factual allegations
25
that would state a claim for negligence.
26
Plaintiff’s claim of copyright infringement fails because its fanciful allegations render this
27
claim frivolous. Plaintiff supports his claim for copyright infringement by stating satellites are
28
“invading [his] privacy.” ECF No. 1. Plaintiff does not allege reproduction of his copyrighted
-2-
1
work. The satellite interference theory is exactly the “delusional scenario” the Ninth Circuit has
2
held to be frivolous. McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). Therefore, this claim
3
is dismissed with prejudice.
4
5
6
IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 2) is
ADOPTED in full.
7
IT IS FURTHER ORDERED that the Plaintiff has 60 days from the date of this Order to
8
file an Amended Complaint, or the Court will dismiss the ADA and negligence claims with
9
prejudice.
10
11
DATED this 2nd day of October, 2018.
___________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?