Shea v. U.S. WCSU

Filing 40

ORDER adopting 31 Report and Recommendations; overruling 36 and 39 Objections; dismissing / allowing counts to proceed as indicated in attached order; denying 37 and 39 Motions for Reconsideration; denying 29 Request for Clarification; directing Clerk to issue summons for named defendants and send Plaintiff USM-285 forms (Clerk mailed USM-285 forms to Plaintiff and distributed issued summons and copies of complaints to USM 10/2/15); directing Plaintiff to return completed USM-285 forms to USM within 20 days. Please see attached for additional details. Signed by Judge Miranda M. Du on 10/2/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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THOMAS GREGORY SHEA,

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Case No. 3:14-cv-00354-MMD-VPC
Plaintiff,

ORDER

v.
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UNITED STATES, et al.,
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Defendants.
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Plaintiff Thomas Gregory Shea, proceeding pro se, initiated this action to assert

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claims under 42 U.S.C. § 1983 and filed an application to proceed in forma pauperis,

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which was granted. (Dkt. no. 8.) Pursuant to 28 U.S.C. § 1915, the Court screened his

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initial complaint and dismissed certain claims with leave to amend. (Id.) Plaintiff filed an

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amended complaint on February 17, 2015. (Dkt. no. 15.) United States Magistrate

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Judge Valerie Cooke screened Plaintiff’s amended complaint and issued a Report and

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Recommendation (“R&R”), recommending dismissal of some claims without leave to

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amend. (Dkt. no. 31.) Plaintiff had until July 18, 2015 to file his objection. (Id.) Plaintiff

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did not timely object. Instead, Plaintiff filed a notice of appeal and then two identical

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objections after his appeal was dismissed. (Dkt. nos. 32, 35, 36, 39.)

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

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

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

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

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party

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fails to object, however, the court is not required to conduct “any review at all . . . of any

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issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

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Indeed, the Ninth Circuit has recognized that a district court is not required to review a

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magistrate judge’s report and recommendation where no objections have been filed.

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See United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the

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standard of review employed by the district court when reviewing a report and

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recommendation to which no objections were made); see also Schmidt v. Johnstone,

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263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in

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Reyna-Tapia as adopting the view that district courts are not required to review “any

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issue that is not the subject of an objection.”). Thus, if there is no objection to a

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magistrate judge’s recommendation, then the court may accept the recommendation

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without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226 (accepting, without

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review, a magistrate judge’s recommendation to which no objection was filed).

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Plaintiff failed to timely object, but he states that this was due to circumstances

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outside of his control. (Dkt. no. 38 at 1-2.) The Court has considered Plaintiff’s objection.

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However, the Court agrees with the Magistrate Judge’s Recommendation and adopts

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the Recommendation in full. The Court therefore overrules Plaintiff’s objection (dkt. nos.

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36, 39).

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It is therefore ordered that Plaintiff is permitted to proceed with his amended

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complaint as follows: (1) Count I against Defendants Deputy Sheriff McVickers

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(“McVickers”), Boyer, Sergeant Does 1, and Deputy Does 1 and 2: (2) Counts II against

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Defendants McVickers, Boyer, Mouholy, Sergeant Does 1 and 2, and Deputy Does 1, 2,

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3 and 4; (3) Count V against Defendants McVickers, Boyer, Mouholy, Sergeant Does 1

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and 2, and Deputy Does 1, 2, 3 and 4; and (4) Count VI, which is construed as a

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Fourteenth Amendment due process claim, against Clerk Supervisor Doe and Sergeant

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Does 1 and 2. Claims against the remaining defendants are dismissed without leave to

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///
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amend and the following counts are dismissed without leave to amend: Counts III, IV,

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VII and VIII.

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Plaintiff filed a second amended complaint without leave of Court. (Dkt. no. 30.)

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In two identical motions for reconsideration (dkt. nos. 37, 39), Plaintiff explained that

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through no fault of his own, a wrong complaint was filed. The second amended

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complaint, like the amended complaint, is 60 pages in length and contains 26 exhibits.

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The second amended complaint appears similar to the amended complaint and

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contains the same deficiencies identified in the Court’s order. The Court therefore

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denies the two motions for reconsideration. (Dkt. nos. 37, 39.)

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Plaintiff filed a motion for subpoena (dkt. no. 27) before the Court permitted him
to proceed. The motion for subpoena is therefore denied.

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Plaintiff filed a request for clarification (dkt. no. 29) where he posits some

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questions to the Court. The Court cannot give legal advice. Plaintiff’s request for

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clarification is denied.

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It is further ordered that the Clerk is directed to issue a summons for the named

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defendants and send Plaintiff copies of the service of process form (USM-285). Plaintiff

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will be given twenty (20) days to complete the USM-285 form and return it to the U.S.

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Marshal to complete service upon the defendants. Within twenty (20) days of receiving

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from the U.S. Marshal a copy of the USM-285 form showing whether service has been

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accomplished, Plaintiff is directed to file a notice with the Court indicating whether the

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defendant was served. If service was not effectuated, and if Plaintiff wishes to have

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service attempted again, he must file a motion with the Court specifying the unserved

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defendant and providing a more detailed name and/or address for said defendant, or

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indicating that some other manner of service should be attempted. Plaintiff is reminded

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that, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, service must be

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accomplished within 120 days of the date of this order.

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It is further ordered that, once service is accomplished, Plaintiff must serve a

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copy of every pleading, motion or other document submitted for consideration by the
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Court upon the defendants or, if appearance has been entered by counsel, upon the

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attorney. Plaintiff must include with the original of each document to be filed with the

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Court a certificate stating that a true and correct copy of the document was mailed to

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the defendants or counsel. The Court may disregard any paper received by a district

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judge or magistrate judge which has not been filed with the Clerk, or any document that

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fails to include a certificate of service.

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DATED THIS 2nd day of October 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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