Albanese v. Las Vegas Metropolitan Police Department

Filing 10

ORDER. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that 3 Magistrate Judge Ferenbach's report and recommendation be, and the same hereby is, adopted in its entirety. IT IS FURTHER ORDERED that the instant case be, and the same hereby is, DISMISSED WITH PREJUDICE. The clerk shall enter judgment accordingly and close the case. Signed by Judge James C. Mahan on 9/6/17. (Copies have been distributed pursuant to the NEF - MR)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 GRACE ALBANESE, 8 Plaintiff(s), 9 10 11 Case No. 2:17-CV-1285 JCM (VCF) ORDER v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT, Defendant(s). 12 13 Presently before the court is Magistrate Judge Ferenbach’s report and recommendation 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge (“R&R”). (ECF No. 3). I. Legal Standard This court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge’s report and recommendation, then the court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails to object, however, the court is not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review a magistrate judge’s report and recommendation where no objections have been filed. See United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by the district court when reviewing a report and recommendation to which no objections were made). 1 2 II. Discussion Plaintiff has not formally objected to the R&R. However, plaintiff’s filings are pro se, and See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A 3 thus this court construes them liberally. 4 document filed pro se is to be liberally construed, and a pro se complaint, however inartfully 5 pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”) 6 (internal quotation marks and citation omitted). Thus, the court construes plaintiff’s notice of 7 appeal (ECF No. 4) as an objection. See id. Although plaintiff does not adequately address or 8 brief the objectionable issues in plaintiff’s notice of appeal, and therefore the court need not engage 9 in a de novo review of the R&R, see Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991), the 10 court will review the screening order de novo to ensure finality in the present case. 11 Upon granting a request to proceed in forma pauperis, the court then screens the 12 complaint under 28 U.S.C. § 1915(e)(2). Federal courts may dismiss an action if it (1) is legally 13 “frivolous or malicious,” (2) fails to state a claim upon which relief may be granted, or (3) seeks 14 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2). 15 Section 1915 conserves judicial resources by empowering courts to dismiss actions that “fall 16 somewhere between the frivolous and the farcical and so foster disrespect for our laws.” 17 Crawford-El v. Britton, 523 U.S. 574, 601 (1998) (Kennedy, J., concurring). 18 Where the litigant files pro se, courts use “less stringent standards” when considering the 19 complaint. See Haines v. Kerner, 404 U.S. 519, 520 (1972). “Such litigants often lack the 20 resources and freedom necessary to comply with the technical rules of modern litigation.” Mala 21 v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013) (citing Moore v. Florida, 703 22 F.2d 516, 520 (11th Cir. 1983)). However, pro se litigants “should not be treated more favorably 23 than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986). 24 If the court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 25 with directions to cure the complaint’s deficiencies, unless it is clear from the face of the complaint 26 that amendment would be futile. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (citation 27 omitted). Courts are not required to entertain duplicative or redundant lawsuits and may dismiss them 28 James C. Mahan U.S. District Judge -2- 1 as frivolous or malicious under § 1915(e). See id. at 1105 n.2 (noting that courts may dismiss under § 2 1915 a complaint that merely repeats pending or previously litigated claims). 3 This case is one of 30 federal cases plaintiff has filed against the Las Vegas Metropolitan 4 Police Department (“LVMPD”) within the last year and a half. The claims raised in plaintiff’s 5 complaint against the LVMPD are directly related, if not identical, to plaintiff’s claims in the other 6 actions. See, e.g., Grace Albanese v. Las Vegas Metropolitan Police Department, case no. 2:16- 7 cv-00532-RFB-GWF; Grace Albanese v. Homeland Security, case no. 2:16-cv-00531-RFB-VCF; 8 Grace Albanese v. Department of Homeland Security, case no. 2:17-cv-01287-JCM-PAL; Grace 9 Albanese v. Federal Bureau of Investigations, 2:17-cv-01286-JAD-PAL. This action is duplicitous 10 11 12 and frivolous. Dismissal pursuant to 28 U.S.C. § 1915(e)(2) is therefore appropriate. III. Conclusion For the reasons stated in Judge Ferenbach’s R&R and stated above, the court dismisses the 13 case with prejudice. 14 Accordingly, 15 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Magistrate Judge 16 Ferenbach’s report and recommendation (ECF No. 3) be, and the same hereby is, adopted in its 17 entirety. 18 19 IT IS FURTHER ORDERED that the instant case be, and the same hereby is, DISMISSED WITH PREJUDICE. 20 The clerk shall enter judgment accordingly and close the case. 21 DATED September 6, 2017. 22 23 __________________________________________ UNITED STATES DISTRICT JUDGE 24 25 26 27 28 James C. Mahan U.S. District Judge -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?