Herrera v. Poehlman

Filing 7

ORDERED that the Magistrate Judge's # 5 Report and Recommendation is well taken and is APPROVED and ADOPTED. FURTHER ORD that the filing fee shall be paid per 28 USC 1915 and PLRA. FURTHER ORD NDOC shall pay clerk from inmate account. Clerk sh all send copy this order to Inmate Services. ( Mailed to NDOC; Emailed to Finance 7/26/2011 ) FURTHER ORD Clerk shall file the complaint # 1 -1. ( copy of filed complaint mailed to P 7/26/2011 ) FURTHER ORD that claims (as specified herein) are perm itted to proceed or DISMISSED WITHOUT PREJUDICE and WITH LEAVE TO AMEND. ( see pdf order for specifics. ) FURTHER ORD P's complaint # 1 -1 is DISMISSED WITH PREJUDICE. FURTHER ORD Ds Pohlman and Pitts are DISMISSED from this action. FURTHER ORD P's # 3 Motion for appointment of counsel is DENIED. FURTHER ORD P's amended complaint due by 8/22/2011. Signed by Judge Edward C. Reed, Jr on 7/25/2011. (Copies have been distributed pursuant to the NEF - DRM)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
RENO, NEVADA
ALEJANDRO HERRERA

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Plaintiff,
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vs.
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MICHAEL POEHLMAN,et al.,
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Defendants.
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________________________________________)

3:11-cv-0026-ECR-VPC
ORDER

On April 15, 2011, the Magistrate Judge filed a Report and
Recommendation (#5).
No objections were timely filed to the Report and
Recommendation.
IT IS, THEREFORE, HEREBY ORDERED that the Magistrate Judge’s Report and
Recommendation (#5) is well taken and is APPROVED and ADOPTED.
IT IS ORDERED that the filing fee shall be paid pursuant to 28 U.S.C §
1915 as amended by the Prisoner Litigation Reform Act of 1996.
IT IS FURTHER ORDERED that pursuant to 28 U.S.C. § 1915, as amended by
the Prisoner Litigation Reform Act, the Nevada Department of Corrections
shall pay the Clerk of the United States District Court, District of Nevada,
20% of the preceding month’s deposits to plaintiff’s account (in months that
the account exceeds $10.00), until the full $350.00 has been paid for this
action. The Clerk shall send a copy of this Order to Albert G. Peralta,
Chief of Inmate Services, Nevada Department of Prisons, P.O. Box 7011, Carson
City, NV 89702.
IT IS FURTHER ORDERED that the Clerk shall file the complaint (#1-1).
IT IS FURTHER ORDERED that the claims in Plaintiff’s complaint (#1-1)
are permitted to proceed:
(1) Fourth Amendment illegal search against Defendant Daniels; and
(2) Fourth Amendment excessive force against Defendant Daniels and
Defendant John Doe #1, #2, #3, #4, #5, and #6.
IT IS FURTHER ORDERED that the claims in Plaintiff’s complaint (#1-1)
are DISMISSED WITHOUT PREJUDICE and WITH LEAVE TO AMEND according to the
guidance provided in the Report and Recommendation:

(1)

Fourth Amendment illegal arrest.

IT IS FURTHER ORDERED that Plaintiff’s complaint (#1-1) be DISMISSED
WITH PREJUDICE for the reasons articulated in the Report and Recommendation.
(1) Official capacity suits against all defendants; and
(2) Supervisory liability against Defendants Poehlman and Pitts.
IT IS FURTHER ORDERED that in accordance with the Report and
Recommendation, Defendants Pohlman and Pitts be DISMISSED from this action.
IT IS FURTHER ORDERED that Plaintiff’s motion for appointment of counsel
(#3) is DENIED.
IT IS FURTHER ORDERED that Plaintiff shall have until August 22, 2011 to
file an amended complaint.
DATED this 25th day of July 2011.

______________________________
EDWARD C. REED
UNITED STATES DISTRICT JUDGE

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