Gann v. Saylor

Filing 6

ORDER adopting and accepting in its entirety 4 R&R; granting 1 IFP application; directing Clerk to file 1 -1 Complaint; permitting claims to proceed, dismissing claims with prejudice, dismissing claim with leave to amend (se e order for details); striking 5 Proposed Amended Complaint; giving Plaintiff 30 days to file a revised proposed amended complaint; directing Clerk to issue summons and send Plaintiff USM-285 form (mailed 10/6/2015); directing Plaintiff to serve defendants copy of all pleadings and include certificate of service. See order for further details. Signed by Judge Miranda M. Du on 10/6/2015. (Copies have been distributed pursuant to the NEF - KR)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

JOSHUA R. GANN,

Case No. 3:15-cv-00264-MMD-WGC
Plaintiff,

10
v.
11

STEVEN SAYLOR , and DOES I-X,

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
WILLIAM G. COBB

12
Defendants.
13
14

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

15

Judge William G. Cobb (dkt. no. 4) (“R&R”) relating to plaintiff’s application to proceed in

16

forma pauperis (dkt. no. 1) and pro se complaint (dkt. no. 1-1). Plaintiff had until

17

September 6, 2015, to file an objection to the R&R (dkt. no. 4). No objection to the R&R

18

has been filed.

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

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

1

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

2

which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

3

1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the

4

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

5

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

6

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

7

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

8

which no objection was filed).

9

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

10

determine whether to adopt Magistrate Judge Cobb’s R&R. Upon reviewing the R&R

11

and underlying briefs, this Court finds good cause to accept and adopt the Magistrate

12

Judge’s R&R in full.

13

Plaintiff has filed a proposed amended complaint.

14

It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

15

Recommendation of Magistrate Judge William G. Cobb (dkt. no. 4) be accepted and

16

adopted in its entirety.

17

It is further ordered that plaintiff’s application to proceed in form pauperis (dkt. no.

18

1) without having to prepay the full filing fee is granted; plaintiff shall not be required to

19

pay an initial installment fee. Plaintiff is permitted to maintain this action to conclusion

20

without the necessity of prepayment of fees or costs or the giving of security therefor.

21

This order granting in forma pauperis status shall not extend to the issuance of

22

subpoenas at government expense.

23

It is further ordered that the Clerk shall detach and file the complaint (dkt. no. 1-1).

24

It is further ordered that the following claims will be permitted proceed:

25

(a) the fourth claim for relief for violation of NRS § 40.180;

26

(b) the sixth claim for relief for theft under § NRS 205.0832 as to the taking of
ore in September 2013 and the taking of the water tanks in February 2013;

27
28

///
2

1

(c) the ninth and tenth claims for relief for trespass to chattel and conversion to

2

the extent the conduct alleged in the complaint occurred within three years from

3

the filing of the complaint; and

4

(d) the eleventh claim for relief for violation of § NRS 40.140 (nuisance) to

5

the extent the conduct alleged in the complaint occurred within three years from

6

the filing of the complaint.

7

It is further ordered that the following claims are dismissed with prejudice:

8

(a) the first claim for relief for violation of NRS § 40.230 (forcible entry);

9

(b) the second claim for relief for violation of NRS § 40.240 (forcible

10

detainer);

11

(c) the third claim for relief under NRS 4§ 0.170 (treble damages);

12

(d) the fifth claim for relief for violation of NRS § 200.471 (assault); and

13

(e) the sixth claim for relief for theft under NRS § 205.0832 insofar as it

14

concerns the wrongful taking of the mining claims in 2009;

15

It is further ordered that the seventh claim for relief for violation of § NRS 205.395

16

(false representation concerning title) is dismissed with leave to amend. The Court notes

17

that Plaintiff filed a proposed amended complaint. (Dkt. no. 5.) However, the proposed

18

amended complaint was prematurely filed before the Court adopted the R&R. Moreover,

19

the proposed amended complaint contains significant new allegations, purports to add

20

new parties and exceeds the scope of the amendment permitted in this Order.

21

Accordingly, the proposed amended complaint will be stricken. Plaintiff is granted leave

22

to file a revised proposed amended complaint with respect to the seventh claim for relief

23

witin thirty (30) days from the date of this order. If Plaintiff files an amended complaint,

24

the amended complaint must be served on the defendants or counsel. Plaintiff should be

25

advised that if he chooses to file an amended complaint, it should be clearly titled as

26

such by placing the words “AMENDED COMPLAINT” in the caption. Pursuant to Local

27

Rule 15-1, the amended complaint must be complete in itself without reference to any

28

prior complaint. Any allegations, parties or requests for relief from prior papers that are
3

1

not carried forward in the amended complaint will no longer be before the Court. If

2

Plaintiff fails to file an amended complaint within the prescribed period of time, the action

3

will proceed as set forth in this order.

4

It is further ordered that the Clerk is directed to file the compliant (dkt. no. 1-1) and

5

issue a summons for the named defendants and send Plaintiff copies of service of

6

process form (USM-285). Plaintiff will be given twenty (20) days to complete the USM-

7

285 form and return it to the U.S. Marshal to complete service upon the defendants.

8

Within twenty (20) days of receiving from the U.S. Marshal a copy of the USM-285 form

9

showing whether service has been accomplished, Plaintiff is directed to file a notice with

10

the Court indicating whether the defendant was served. If service was not effectuated,

11

and if Plaintiff wishes to have service attempted again, he must file a motion with the

12

Court specifying the unserved defendant and providing a more detailed name and/or

13

address for said defendant, or indicating that some other manner of service should be

14

attempted. Plaintiff is reminded that, pursuant to Rule 4(m) of the Federal Rules of Civil

15

Procedure, service must be accomplished within 120 days of the date of this order.

16

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

17

of every pleading, motion or other document submitted for consideration by the Court

18

upon the defendants or, if appearance has been entered by counsel, upon the attorney.

19

Plaintiff must include with the original of each document to be filed with the Court a

20

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

21

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

22

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

23

include a certificate of service.

24
25

The Clerk is directed to strike the proposed amended complaint (dkt. no. 5).
DATED THIS 6th day of October 2015.

26
27
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

28
4