Thomas Jr v. Westgate Resort Casino et al

Filing 13

ORDER that 11 Motion for 30-Day Extension is denied.REPORT AND RECOMMENDATION that Plaintiff's complaint be dismissed with prejudicefor failure to state a claim upon which relief may be granted. Objections to R&R due by 9/13/2017. Signed by Magistrate Judge George Foley, Jr on 8/30/17. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MARK THOMAS JR.,
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Plaintiff,
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vs.
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WESTGATE RESORT & CASINO and
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CAMI CHRISTENSEN
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Defendants.
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__________________________________________)

Case No. 2:16-cv-02261-JAD-GWF
ORDER AND REPORT
AND RECOMMENDATION

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This matter is before the Court on Plaintiff’s Motion for 30-Day Extension (ECF No. 11)
and Motion to Show Cause (ECF No. 12), filed on August 23, 2017.
Plaintiff, who is proceeding in this action pro se, filed a Application for Leave to Proceed in

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Forma Pauperis (ECF No. 1) along with a Complaint (ECF No. 1-1) on September 27, 2017. The

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Court issued a Screening Order on June 1, 2017 granting Plaintiff in forma pauperis status but

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dismissing Plaintiff’s complaint for failure to properly allege that the Court has jurisdiction over his

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claims and for failure to sufficiently allege a legal theory under which he sought to sue Defendants.

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See ECF No. 2. The Court gave Plaintiff until June 30, 2017 to file an amended complaint that

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would correct those deficiencies. Id. Plaintiff did not file an amended complaint. The Court

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ordered Plaintiff to show cause, in writing, why this case should not be dismissed for his failure to

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file an amended complaint. See Response (ECF No. 6). After a brief extension of time, Plaintiff

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filed a response. See ECF No. 9. The Court advised Plaintiff that his response could not be

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construed as an amended complaint because it failed to correct the deficiencies addressed in the

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Court’s Screening Order. See Order (ECF No. 10). The Court, however, allowed Plaintiff until

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August 25, 2017 to file an amended complaint.

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Plaintiff filed the instant Motion to Show Cause on August 23, 2017. Construing this

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motion as an amended complaint, the Court again finds that it is deficient. Plaintiff’s motion fails to

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establish that this Court has jurisdiction over his claims and fails to state any cause of action.

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Plaintiff is arguably attempting to allege that Defendants were negligent when a fire occurred at

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Defendant’s place of business. However, Plaintiff failed to successfully allege the elements of a

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negligence claim.1 Plaintiff was cautioned that failure to cure the deficiencies identified in the

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Court’s Screening Order would result in a recommendation that the complaint be dismissed with

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prejudice. Therefore, the Court recommends that this matter be dismissed. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Motion for 30-Day Extension (ECF No. 11) is
denied.

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RECOMMENDATION

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IT IS HEREBY RECOMMENDED that Plaintiff’s complaint be dismissed with prejudice
for failure to state a claim upon which relief may be granted.

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NOTICE

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Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be

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in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has

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held that the courts of appeal may determine that an appeal has been waived due to the failure to file

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objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has

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also held that (1) failure to file objections within the specified time and (2) failure to properly

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address and brief the objectionable issues waives the right to appeal the District Court’s order and/or

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appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157

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(9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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DATED this 30th day of August, 2017.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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To state a claim for negligence a plaintiff must establish that: (1) defendant owed a duty to the plaintiff; (2) the
defendant breached that duty causing injury to the plaintiff; (3) the breach was the actual cause of the plaintiff's injury; and (4)
the injury was a foreseeable consequence of defendant's breach. See Hammerstein v. Jean Dev. W., 907 P.2d 975, 977
(Nev.1995); see also Prescott v. United States, 858 F.Supp. 1461, 1471 (D.Nev.1994).

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