Hernandez v. Lombardo et al

Filing 18

ORDER Denying Plaintiff's 15 Motion for Permission to File New Complaint and Revoking Permission to Proceed in forma pauperis. The Clerk of Court is directed to close this case. Signed by Judge Jennifer A. Dorsey on 3/21/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Ismael Guillermo Hernandez,
2:16-cv-01219-JAD-NJK

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Plaintiff

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v.

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Sheriff Joe Lombardo, et al.,

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Defendants

Order Denying Motion for Permission
to File and Revoking Permission to
Proceed in forma pauperis
[ECF No. 15]

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Ismael Guillermo Hernandez brings this civil-rights action to challenge the ongoing criminal

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proceedings against him in Nevada’s Eighth Judicial District Court. On January 24, 2017, the

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magistrate judge entered a report recommending that I dismiss this action without prejudice to

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Hernandez’s ability to bring his claims in the proper forum at the proper time.1 On February 10,

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2017, I adopted without review the magistrate judge’s then-unobjected to report and

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recommendation.2 A few days after I issued my dismissal order, the court received a timely

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dispatched objection to the report and recommendation, and Hernandez moved for leave to file an

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amended complaint and later appealed my dismissal order to the Ninth Circuit. The Ninth Circuit

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has referred this matter for me to determine whether Hernandez’s in forma pauperis status should

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continue on appeal, which requires me to determine whether Hernandez’s appeal is frivolous or

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taken in bad faith.3

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In making this determination, I first take this opportunity to review the magistrate judge’s

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report and recommendation and Hernandez’s objections de novo. I agree with the magistrate judge

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that Hernandez’s claims are barred by Younger v. Harris,4 and that all four requirements for Younger

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ECF No. 8.

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ECF No. 8.

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See 28 U.S.C. § 1915(a)(3); see also Hooker v. American Airlines, 302 F.3d 1091,1092 (9th Cir.
2002).
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Younger v. Harris, 401 U.S. 37, 44 (1972).

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abstention are present here. I therefore decline to enjoin the Nevada state court’s criminal

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proceedings against Hernandez or require that court to grant his bail request. Because these defects

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cannot be cured by amendment, I deny Hernandez’s motion for leave to file an amended complaint.5

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And because this court lacks jurisdiction to enjoin Hernandez’s ongoing state criminal proceedings, I

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hereby certify that any appeal in this action is frivolous and taken in bad faith.

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Accordingly, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Hernandez’s

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motion for permission to file new complaint [ECF No. 15] is DENIED, and Hernandez’s in forma

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pauperis status is hereby REVOKED.

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The Clerk of Court is directed to CLOSE THIS CASE.

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Dated this 21st day of March, 2017.

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_________________________________
Jennifer A. Dorsey
United States District Judge

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ECF No. 15.