Steve v. Forgeran et al

Filing 43

ORDER DISMISSING CASE. Defendants' motion to dismiss 18 is hereby GRANTED and this action is DISMISSED WITH PREJUDICE. The plaintiff's cross-motion for summary judgment 30 is DENIED. IT IS SO ORDERED. Signed by Judge Howard D. McKibben on 7/26/2012. (Copies have been distributed pursuant to the NEF - MLC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LAWSON STEVE,

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Plaintiff,
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vs.
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MESHELL PRAWTIZ, et al.,
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Defendants.
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_________________________________ )

3:11-cv-00423-HDM-VPC
ORDER

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The court has considered the report and recommendation of the
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United States Magistrate Judge (#39) filed on May 30, 2012, in
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which the magistrate judge recommends that this court grant
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defendants’ motion to dismiss (#18) and deny plaintiff’s cross18
motion for summary judgment (#30).

Plaintiff opposed the motion to

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dismiss (#31), and defendants replied (#33).

Plaintiff has filed

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objections to the report and recommendation (#40), and defendants
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have filed their response (#41).1
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On July 9, 2012, plaintiff also filed a reply to the defendants’
response to plaintiff’s objections. Such a reply is not authorized under
the court’s local rules. See L.R. IB 3-2(a). Further, the reply merely
repeats arguments the plaintiff has already asserted in earlier briefs.
Accordingly, the court will not consider the plaintiff’s unauthorized reply
(#42).

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The court has considered the pleadings and memoranda of the
parties and other relevant matters of record and has made a review
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and determination in accordance with the requirements of 28 U.S.C.

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§ 636 and applicable case law, the court hereby accepts and adopts

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the report and recommendation of the United States Magistrate Judge

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(#39).

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the following.

In response to the plaintiff’s objections, the court notes

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Plaintiff has not disputed that the complaint filed in this

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action raises claims that were or could have been raised in case

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number 3:09-cv-000348-RCJ-VPC (“Steve I”).

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objected only to the conclusion that the dismissal of Steve I was

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Rather, plaintiff has

with prejudice.
The court dismissed Steve I for failure to comply with a court

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order.

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dismissed pursuant to Federal Rule of Civil Procedure 41(b), and

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unless the court indicated otherwise or one of the listed

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exceptions applied, the dismissal “operate[d] as an adjudication on

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the merits.”

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merits” means, under the rule, a dismissal with prejudice.

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Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001); see

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also Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002).

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dismissal with prejudice bars refiling of the same claim in the

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same court.

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The dismissal was not voluntary.

Fed. R. Civ. P. 41(b).

Accordingly, Steve I was

“[A]n adjudication on the
Semtek

Semtek, 531 U.S. at 506.

An involuntary dismissal operates as an adjudication on the

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merits unless the dismissal was for lack of jurisdiction, improper

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venue, or failure to join a party under Federal Rule of Civil

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Procedure 19.

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for improper venue or failure to join a party under Rule 19.

Fed. R. Civ. P. 41(b).

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Steve I was not dismissed

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Plaintiff apparently argues, however, that it was dismissed for a
lack of jurisdiction.

Specifically, he argues: (1) that he did not

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submit a complaint with his in forma pauperis (“IFP”) application

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so no civil action was ever initiated; and (2) the complaint he did

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submit was never screened and served on the defendants so the court

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lacked jurisdiction to proceed.

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Plaintiff provides no legal authority for either of these

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propositions, and the court can find none.

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“brought” for certain PLRA2 purposes when the plaintiff submits an

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IFP application and a complaint.

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1152 (9th Cir. 2008); Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th

In fact, an action is

O’Neal v. Price, 531 F.3d 1146,

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Cir. 2006).

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there is no basis for concluding that even though an action was

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“brought” for certain PLRA purposes that it was not “initiated” for

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jurisdictional and res judicata purposes.

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authority supporting plaintiff’s contention that the court does not

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have jurisdiction over a prisoner action until screening and

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service have taken place.

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Plaintiff here did both.

In light of this authority,

In addition, there is no

Plaintiff also argues that his complaint was dismissed based

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on an “administrative issue” and not on the merits, so res judicata

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cannot apply.

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dismissal with prejudice under Rule 41 bars the plaintiff from

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refiling the same claim in the same court.

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506.

This argument is beside the point.

An involuntary

Semtek, 531 U.S. at

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Finally, plaintiff argues that he did not receive the court’s

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order in Steve I directing him to respond until after the case had

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PLRA stands for the Prison Litigation Reform Act of 1995, 110 Stat.
1321-71, which applies to plaintiff’s complaints.

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been dismissed.

This argument is not properly before the court in

this case and was an issue only for the court in Steve I.

In fact,

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plaintiff did assert this argument in his motion to reopen the

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case.

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file a notice of appeal, not to file a new action.

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not to exercise his valid appellate rights.

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I is final and precludes the filing of the complaint in this case.

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When the court denied the motion, plaintiff’s remedy was to
Plaintiff chose

The decision in Steve

In accordance with the foregoing, the defendants’ motion to

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dismiss (#18) is hereby GRANTED and this action is DISMISSED WITH

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PREJUDICE.

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is DENIED.

The plaintiff’s cross-motion for summary judgment (#30)

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IT IS SO ORDERED.

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DATED: This 26th day of July, 2012.

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____________________________
UNITED STATES DISTRICT JUDGE

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