Hale v. State of Nevada ex rel. Board of Regents for the Nevada System of Higher Education

Filing 14

ORDER Adopting Report and Recommendations re 5 Report and Recommendation. IT IS FURTHER ORDERED that the First, Second, and Third Causes of Action asserting state law claims under NRS 613.330 and 613.340 from the original complaint are DISMISSED without prejudice. See Order for Details. Signed by Judge Cristina D. Silva on 9/15/2022. (Copies have been distributed pursuant to the NEF - JQC)

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Case 2:22-cv-01321-CDS-EJY Document 14 Filed 09/15/22 Page 1 of 4 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Case No.: 2:22-cv-01321-CDS-EJY 5 Melvin Hale, 6 7 Plaintiff, v. 8 Nevada System of Higher Education, 9 Order Adopting Report and Recommendation of Magistrate Judge [ECF No. 5] Defendant. 10 11 Before the Court is the Report and Recommendation (“R&R”) (ECF No. 5) of United 12 States Magistrate Judge Elayna J. Youchah issued following the review of Plaintiff Melvin Hale’s 13 complaint alleging state and federal civil rights violations (ECF No. 1-1) and application to 14 proceed in forma pauperis (ECF No. 1). In the R&R, Magistrate Judge Youchah recommended that 15 parts of Hale's complaint be dismissed with leave to amend his claims, and others be dismissed 16 with prejudice. Because Hale has not objected to Magistrate Judge Youchah’s R&R, I adopt the 17 R&R in its entirety and dismiss Hale’s complaint with leave to amend. 18 I. Relevant Background Information 19 Hale filed an application for leave to proceed in forma pauperis (ECF No. 1) alongside his 20 initial complaint (ECF No. 1-1) on August 16, 2022. After a review, Magistrate Judge Youchah 21 entered an R&R (ECF No. 5) granting Hale’s IFP application but recommending that the first, 22 part of the second, and third causes of action (asserting state law claims under NRS 613.330 and 23 613.340) be dismissed without prejudice because they cannot pierce the State of Nevada’s 24 immunity from suit in federal court; that the other part of the second and fourth causes of action Case 2:22-cv-01321-CDS-EJY Document 14 Filed 09/15/22 Page 2 of 4 1 (asserting claims under Title VII) be dismissed without prejudice for failure to exhaust 2 administrative remedies; and that Hale’s third cause of action (asserting violations of the ADEA) 3 be dismissed with prejudice because these claims are barred by Eleventh Amendment sovereign 4 immunity. See ECF No. 5 at 4-5. Hale was granted leave to file an amended complaint 5 demonstrating exhaustion of administrative remedies regarding his Title VII claims. Id. at 5. Hale 6 was advised that failure to abide by the terms of the R&R would result in the action being 7 dismissed without prejudice in its entirety. Id. 8 Hale has not filed objections to the R&R. 9 II. 10 Discussion Pursuant to the local rules, Hale had fourteen (14) days to file any objections to the 11 R&R. LR IB 3-2(a) (stating that a party who objects to a report and recommendation from a 12 magistrate judge must file a written objection supported by points and authorities within 13 fourteen days of being served with the report and recommendation). The deadline to file an 14 objection was September 1, 2022. See ECF No. 5 at 5. Instead of filing an objection, Hale chose to 15 file an amended complaint. 1 ECF No. 6. 16 Although “no review is required of a magistrate judge’s report and recommendation 17 unless objections are filed,” I conducted a de novo review of the issues set forth in the report and 18 recommendation. Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003); see also Thomas v. 19 Arn, 474 U.S. 140, 150 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 20 When reviewing the order of a Magistrate Judge, the order should only be set aside if the order 21 is clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a); LR IB 3-1(a); 28 U.S.C. § 22 636(b)(1)(A); Laxalt v. McClatchy, 602 F. Supp. 214, 216 (D. Nev. 1985). A Magistrate Judge's order 23 1 The amended complaint (ECF No. 6) appears to allege only the claims for which amendment 24 was recommended in the R&R and will be screened in due course. . 2 Case 2:22-cv-01321-CDS-EJY Document 14 Filed 09/15/22 Page 3 of 4 1 is “clearly erroneous” if the court has “a definite and firm conviction that a mistake has been 2 committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Burdick v. Comm’r IRS, 979 3 F.2d 1369, 1370 (9th Cir. 1992). “An order is contrary to law when it fails to apply or misapplies 4 relevant statutes, case law or rules of procedure.” UnitedHealth Grp., Inc. v. United Healthcare, Inc., 5 2014 WL 4635882, at *1 (D. Nev. Sept. 16, 2014). 6 After considering the relevant record, lack of objections, and the recommendations, I find 7 the R&R well-reasoned and neither clearly erroneous nor contrary to the law. Specifically, Hale 8 must exhaust his administrative remedies as a “statutory pre-requisite to…pursue litigation 9 under both Title VII and the ADEA.” Ramirez v. Kingman Hosp. Inc., 374 F. Supp. 3d 832, 854 (D. 10 Ariz. 2009). The same is true for Hale’s attempt to pursue NRS 613 violations under state law. 11 See Pope v. Motel 6, 114 P.3d 277, 280 n.6 (Nev. 2005) (“NRS 613.420 requires an employee alleging 12 employment discrimination to exhaust his administrative remedies by filing a complaint with 13 NERC before filing a district court action.”). Because Hale has not proven that he has exhausted 14 administrative remedies with the EEOC or NERC, his discrimination claims may not proceed. 15 III. 16 IT IS HEREBY ORDERED that Magistrate Judge Youchah’s Report and Conclusion 17 Recommendation (ECF No. 5) is ADOPTED in its entirety. 18 Because Hale has already filed an amended complaint, IT IS FURTHER ORDERED that 19 the First, Second, and Third Causes of Action asserting state law claims under NRS 613.330 and 20 613.340 from the original complaint are DISMISSED without prejudice; and may not be 21 reasserted herein. 22 IT IS FURTHER ORDERED that Plaintiff’s Second and Fourth Causes of Action under 23 Title VII from the original complaint are DISMISSED with leave to amend. 24 3 Case 2:22-cv-01321-CDS-EJY Document 14 Filed 09/15/22 Page 4 of 4 1 IT IS FURTHER ORDERED that Plaintiff’s Third Cause of Action asserting violations of 2 the ADEA are DISMISSED with prejudice because these claims are barred by the Eleventh 3 Amendment. 4 IT IS SO ORDERED. 5 DATED this September 15, 2022. 6 ______________________________________ Cristina D. Silva United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 4

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