Kozlowski et al v. State of Nevada

Filing 4

ORDER adopting and accepting in its entirety 3 R&R, granting 1 IFP application; permitting claims to proceed, dismissing claims with/without prejudice (see order for details); allowing Plaintiffs 30 days to file an amended complaint. Signed by Judge Miranda M. Du on 11/23/2015. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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STEVEN KOZLOWSKI,
MICHELLE KOZLOWSKI,

Case No. 3:15-cv-00246-MMD-VPC

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Plaintiffs,
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v.
STATE OF NEVADA, et al.,

ORDER ACCEPTING AND
ADOPTING REPORT AND
RECOMMENDATION
OF MAGISTRATE JUDGE
VALERIE P. COOKE

Defendants.

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Before the Court is the Report and Recommendation of

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United States Magistrate Judge Valerie P. Cooke (dkt. no. 3)

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(“R&R”) relating to plaintiffs’ application to proceed in forma

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pauperis (dkt. no. 1) and pro se complaint (dkt. no. 1-1). Plaintiffs

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were allowed up to November 5, 2015, to file and objection. No

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objection to the R&R has been filed.

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

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the findings or recommendations made by the magistrate judge.”

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28 U.S.C. § 636(b)(1). Where a party timely objects to a

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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

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[report and recommendation] to which objection is made.” 28

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U.S.C. § 636(b)(1). Where a party fails to object, however, the

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

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that is not the subject of an objection.” Thomas v. Arn, 474 U.S.

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140, 149 (1985). Indeed, the Ninth Circuit has recognized that a

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district court is not required to review a magistrate judge’s report

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and recommendation where no objections have been filed. See

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

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(disregarding the standard of review employed by the district court

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when reviewing a report and recommendation to which no

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objections were made); see also Schmidt v. Johnstone, 263 F.

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

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decision in Reyna-Tapia as adopting the view that district courts

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are not required to review “any issue that is not the subject of an
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objection.”). Thus, if there is no objection to a magistrate judge’s

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recommendation, then the court may accept the recommendation

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

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(accepting, without review, a magistrate judge’s recommendation

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to which no objection was filed).

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

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novo review to determine whether to adopt Magistrate Judge

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Cook’s R&R. Upon reviewing the R&R and underlying briefs, this

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Court finds good cause to accept and adopt the Magistrate

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Judge’s R&R in full.

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It is therefore ordered, adjudged and decreed that the Report

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and Recommendation of Magistrate Judge Valerie P. Cooke (dkt.

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no. 3) be accepted and adopted in its entirety.

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It is ordered that plaintiffs application to proceed in form

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pauperis (dkt. no. 1) is granted; plaintiffs will not be required to pay

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an initial fee.

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It is further ordered that Mr. Kozlowski’s Title II ADA claims

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regarding his March 2010 arrest proceed against DSCO, Mr.

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///
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Harker in his official capacity, and Mr. Coverley in his official

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capacity.

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It is further ordered that all claims are dismissed with

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prejudice, without leave to amend against defendant Wilson,

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Gibbons, Pickering, Parraguire, and Saitta.

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It is further ordered that all claims asserted on behalf of Mrs.

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Kozlowski are dismissed with prejudice, without leave to amend,

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and that all claims on behalf of John Does I through V are

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dismissed wihtout prejudice, with leave to amend.

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It is further ordered that Mr. Kozlowski’s remainig claims are

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dismissed without prejudice, with leave to amend against all

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defendants.

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Plaintiffs are granted leave to file an amended complaint to

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cure the deficiencies of the complaint. If Plaintiffs choose to file an

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amended complaint Plaintiffs are advised that an amended

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complaint supersedes the original complaint and, thus, the

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amended complaint must be complete in itself. See Hal Roach

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Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546

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(9th Cir. 1989) (holding that “[t]he fact that a party was named in
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the original complaint is irrelevant; an amended pleading

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supersedes the original”); see also Lacey v. Maricopa Cnty., 693

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F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed

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with prejudice, a plaintiff is not required to reallege such claims in

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a subsequent amended complaint to preserve them for appeal).

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Plaintiffs’ amended complaint must contain all claims, defendants,

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and factual allegations that Plaintiffs wishes to pursue in this

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lawsuit. Any allegations, parties, or requests for relief from prior

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papers that are not carried forward in the amended complaint will

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no longer be before the Court. Plaintiffs must clearly title the

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amended complaint as such by placing the words “First Amended

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Complaint” on page 1 in the caption and Plaintffs must place the

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case number 3:15-cv-00246-MMD-VPC above the words “First

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Amended Complaint.” If Plaintiffs choose to file an amended

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complaint curing the deficiencies as outlined in this order, Plaintiffs

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must file the amended complaint within thirty (30) days from the

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date of entry of this order. Failure to file an amended complaint will

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result in dismissal of the dismissed claims with prejudice. In that

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event, this action will proceed on Mr. Kozlowski’s Title II ADA
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claims regarding his March 2010 arrest against DSCO, Mr. Harker

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in his official capacity, and Mr. Coverley in his official capacity

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DATED THIS 23rd day of November 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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