Meisler v. Chrzanowski et al

Filing 22

ORDER accepting and adopting 21 Report and Recommendation. Claims dismissed/allowed to proceed in accordance with attached order. Plaintiff advised that he must serve summons and copy of First Amended Complaint within 120 days. Signed by Judge Miranda M. Du on 7/28/14. (Copies have been distributed pursuant to the NEF - JC)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

MICHAEL CHARLES MEISLER,
Plaintiff,

10

Case No. 3:12-cv-00487-MMD-WGC
ORDER

v.
11
NADINE CHRZANOWSKI, et al,

(Report and Recommendation
– dkt. no. 21)

12
Defendants.
13
14

Before the Court is the Report and Recommendation of United States Magistrate

15

Judge William G. Cobb (dkt. no. 21) (“R&R”) regarding the screening of Plaintiff Michael

16

Charles Meisler’s First Amended Complaint (“FAC”) (dkt. no. 20). The R&R recommends

17

that the Court permit some of Plaintiff’s claims to proceed and dismiss Plaintiff’s

18

remaining claims with prejudice. (Dkt. no. 21 at 12-13.) Objections to the R&R were due

19

by March 13, 2014. No objection was filed. For the reasons set out below, the R&R is

20

accepted and adopted in full.

21

This Court “may accept, reject, or modify, in whole or in part, the findings or

22

recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Where a party timely

23

objects to a magistrate judge’s report and recommendation, then the court is required to

24

“make a de novo determination of those portions of the [report and recommendation] to

25

which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails to object, however,

26

the court is not required to conduct “any review at all . . . of any issue that is not the

27

subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth

28

Circuit has recognized that a district court is not required to review a magistrate judge’s

1

report and recommendation where no objections have been filed. See United States v.

2

Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review

3

employed by the district court when reviewing a report and recommendation to which no

4

objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D.

5

Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that

6

district courts are not required to review “any issue that is not the subject of an

7

objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then

8

the court may accept the recommendation without review. See, e.g., Johnstone, 263 F.

9

Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to

10

which no objection was filed).

11

Nevertheless, this Court finds it appropriate to engage in a de novo review to

12

determine whether to adopt the R&R’s recommendation. Upon reviewing the R&R and

13

underlying briefs, this Court finds good cause to adopt the R&R in full. Plaintiff filed the

14

Complaint on September 24, 2012. (Dkt. no. 4.) The Complaint was screened by Judge

15

Cobb (dkt. no. 14) and several claims were dismissed. (Dkt. no. 16.)

16

Plaintiff then filed the FAC remedying many of the problems identified by the first

17

R&R. (Dkt. no. 20.) The FAC asserts several constitutional violations. (Id. at 9-13.) The

18

FAC alleges that Defendants Chrzanowski, Munoz, Duzan, Vidovich, Pierini and

19

Douglas County violated Plaintiff’s rights under the Fourth Amendment to the United

20

States Constitution and Article 1, Section 18 of the Nevada Constitution, as well as his

21

due process rights under the Fourteenth Amendment to the United States Constitution

22

and Article 1, Section 8(5) of the Nevada Constitution, when his cellular data was

23

obtained without a warrant or court order. (Dkt. no. 20 at 9-11 ¶¶ 28-34.)

24

However, Plaintiff’s Fourth Amendment and Fourteenth Amendment due process

25

claims, with regard to Plaintiff’s allegations that his cellular data was obtained without a

26

warrant, were previously dismissed with prejudice. (Dkt. no. 16 at 2-3.) Therefore, these

27

two claims are no longer before the Court.

28

///
2

1

With respect to Plaintiff’s Fourth Amendment and Fourteenth Amendment due

2

process claims based on allegations that Plaintiff’s cellular data was obtained without a

3

court order, the R&R found that Plaintiff stated a colorable claim. (Dkt. no. 21 at 8.) The

4

Court agrees.

5

Plaintiff also attempts to allege that a conspiracy to violate these constitutional

6

rights existed between Defendants Tebo, Sprint, and Sperry. (Dkt. no. 20 at 10-11 ¶¶ 31-

7

34.) On screening Plaintiff’s original Complaint, Judge Cobb informed Plaintiff that, in

8

order to state a claim for constitutional violations pursuant to 42 U.S.C. § 1983 against

9

non-state defendants based on an alleged conspiracy, Plaintiff would need to show a

10

meeting of the minds with state officials to violate Plaintiff’s constitutional rights. (Dkt. no.

11

14 at 7-9.) Although Plaintiff has alleged a meeting of the minds between Tebo and

12

Sperry, there is no alleged meeting of the minds between state actor Chrzanowski and

13

any of these Defendants. (Dkt. no. 20 at 12 ¶ 40.) Plaintiff has already been given an

14

opportunity to amend this claim and has failed to do so (see dkt. no. 16), thus the Court

15

agrees with the R&R that this claim should be dismissed with prejudice.

16

The FAC makes several claims under state law as well. (Dkt. no. 20 at 13-20.)

17

Plaintiff alleges that Defendants Tebo and Sperry maintained an uninterrupted line of

18

communication to create a plan that would result in the arrest and incarceration of

19

Plaintiff. (Id. at 13.) The Court agrees with the R&R that Plaintiff has stated a colorable

20

claim for conspiracy between Tebo and Sperry.

21

Next, Plaintiff alleges, as he did in his original complaint, that his contract with

22

Sprint was breached when Sprint provided personal information to the police without first

23

receiving a warrant or court order. (Id. at 14-17.) The Court agrees with the R&R that

24

Plaintiff has stated a claim for breach of contract against Sprint.

25

Lastly, Plaintiff alleges that Sprint requested an exigent circumstances affidavit,

26

but that there is no evidence that an affidavit was ever received by Sprint before it

27

provided law enforcement with Plaintiff’s cellular location data. (Id. at 18.) Plaintiff alleges

28

that Sprint was negligent in failing to verify the receipt of this affidavit before providing
3

1

the data. (Id. at 18-19 ¶ 63.) The Court agrees with the R&R that Plaintiff has stated a

2

claim for negligence against Sprint.
It is hereby ordered that the Report and Recommendation of Magistrate Judge

3
4

William G. Cobb (dkt. no. 21) is accepted and adopted in its entirety.

5

It is further ordered that Plaintiff may proceed with his claim that his rights under

6

the Fourth Amendment to the United States Constitution and Article I, Section 18 of the

7

Nevada Constitution were violated by Defendants Chrzanowski, Munoz, Duzan,

8

Vidovich, Pierini, and Douglas County when his cellular location was obtained without a

9

court order.

10

It is further ordered that Plaintiff may proceed with his claim that his rights to due

11

process under the Fourteenth Amendment to the United States Constitution and Article I,

12

Section 8(5) of the Nevada Constitution were violated by Defendants Chrzanowski,

13

Munoz, Duzan, Vidovich, Pierini, and Douglas County when his cellular location was

14

obtained without a court order.

15

It is further ordered that Plaintiff’s claim that Defendants Tebo, Sperry, and Sprint

16

conspired to deprive him of his federal constitutional rights or his rights under the

17

Nevada Constitution be dismissed with prejudice.
It is further ordered that Plaintiff may proceed with his claim of civil conspiracy

18
19

against Defendants Tebo and Sperry.
It is further ordered that Plaintiff may proceed with his state law negligence claim

20
21

against Defendants Tebo and Sperry.
It is further ordered that Plaintiff may proceed with his state law breach of contract

22
23

claim against Defendant Sprint.
It is further ordered that Plaintiff may proceed with his state law negligence claim

24
25

against Defendant Sprint.

26

///

27

///

28

///
4

1
2
3

Plaintiff is advised that he must serve summons and a copy of the First Amended
Complaint within 120 days. Fed. R. Civ. P. 4(m).
Dated this 28th day of July 2014.

4
5
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5