Committe v. Pippin

Filing 5

ORDER that the Report and Recommendation of Magistrate Judge William G. Cobb ECF No. 3 is accepted and adopted; Plaintiffs Application to Proceed In Forma Pauperis ECF No. 1 is granted; the Clerk file the Complaint ECF No. 1 -1; this action is dismissed with prejudice; Clerk is instructed to close this case. Signed by Judge Miranda M. Du on 10/10/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BRUCE COMMITTE,

Case No. 3:17-cv-00446-MMD-WGC
Plaintiff,

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v.

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

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SONJA PIPPIN, et al.,
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Defendants.
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Before the Court is the Report and Recommendation of United States Magistrate

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Judge William G. Cobb (ECF No. 3) (“R&R” or “Recommendation”). The Magistrate

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Judge recommends granting Plaintiff’s Application to Proceed In Forma Pauperis (ECF

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No. 1) and dismissing the Complaint (ECF No. 1-1) with prejudice. Plaintiff timely filed an

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objection thereto on August 11, 2017 (“Objection”) (ECF No. 4).

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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). In light of Plaintiff’s

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objection, the Court engages in a de novo review to determine whether to adopt

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Magistrate Judge Cook’s Recommendation.

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The Magistrate Judge found that Plaintiff fails to state a claim under 42 U.S.C. §

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1983 or the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et. seq.,

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based on the decision of Defendant Sonja Pippin, an accounting faculty member of the

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University of Nevada, Reno who was in charge of the search for a new accounting

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faculty member to start in the Fall of 2017. (ECF No. 4.) Plaintiff alleges that Pippin did

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not select him because of his older age. (ECF No. 1-1 at 2.) In his objection, Plaintiff

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asserts that he is not alleging a claim under the ADEA, but is asserting a section 1983

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equal protection claim. (ECF No. 4 at 2.) However, the Ninth Circuit Court of Appeals

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has held that “the ADEA precludes the assertion of age discrimination in employment

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claims, even those seeking to vindicate constitutional rights, under § 1983.” Ahlmeyer v.

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Nev. Sys. Of Higher Educ., 555 F.3d 1051, 1057 (9th Cir. 2009).

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exclusive remedy is relief under the ADEA. Plaintiff argues that Ahlmeyer was overruled

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by the Seventh Circuit Court of Appeals in Levin v. Madiga, 692 F.3d 607 (7th Cir. 2012).

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However, the Seventh Circuit cannot overrule the Ninth Circuit. The Court is bound by

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the Ninth Circuit Court’s holding that the ADEA is the exclusive remedy for alleged age

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discrimination in the employment context. (ECF No. 4 at 2.) The Court therefore agrees

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with the Magistrate Judge’s recommendation and adopts the R&R in full.

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It

is

therefore

ordered,

adjudged

and

decreed

that

Thus, Plaintiff’s

the

Report

and

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Recommendation of Magistrate Judge William G. Cobb (ECF No. 3) is accepted and

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adopted in its entirety.

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It is further ordered that Plaintiff’s Application to Proceed In Forma Pauperis (ECF
No. 1) is granted

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It is further ordered that the Clerk file the Complaint (ECF No. 1-1).

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It is ordered that this action is dismissed with prejudice.

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The Clerk is instructed to close this case.

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DATED THIS 10th day of October 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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