McKnight v. Nevada Department of Health and Human Services, Division of Welfare and Suportive Services et al

Filing 14

ORDER that the R&R (ECF No. 10 ) is accepted and adopted in full; Plaintiff's Fourteenth Amendment claim (Count I) is dismissed without prejudice and with leave to amend; Plaintiff may proceed on her ADA Title II claim (Count II); Plaintiff's breach of contract claim (Count III) is dismissed with prejudice; If Plaintiff chooses to file a second amended complaint curing the deficiencies as to Count I, as outlined in the R&R, Plaintiff must file the amended complain t by 10/25/2018; If Plaintiff chooses not to file a second amended complaint by 10/25/2018, the Court will dismiss Count I with prejudice and the case will proceed on Count II. Signed by Judge Miranda M. Du on 9/25/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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TERRIA McKNIGHT,

Case No. 3:17-cv-00483-MMD-CBC
Plaintiff,

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ORDER

v.
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NEVADA DEPARTMENT OF HEALTH
AND HUMAN SERVICES DIVISION OF
WELFARE AND SUPPORTIVE
SERVICES ADMINISTRATIVE
ADJUDICATION OFFICE, 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 Valerie P. Cooke (ECF No. 10) (“R&R”) relating to the screening of Plaintiff’s pro

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se Amended Complaint (ECF No. 7).1 Judge Cooke recommended: (1) dismissing

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Plaintiff’s Fourteenth Amendment claim against individual officers with the Division of

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Welfare and Supportive Services (“DWSS”) (as alleged in Count I); (2) permitting Plaintiff

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to proceed on her ADA Title II claim (as alleged in Count II); and dismissing Plaintiff’s

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breach of contract claim (Count III) with prejudice. (ECF No. 10.) Plaintiff filed an

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objection (“Objection”) (ECF No. 11), as well as a document titled “Amendment of Count

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I” (“Amendment”) (ECF No. 12). For the reasons stated below, the Court overrules

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Plaintiff’s Objection.

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1The

Court previously screened Plaintiff’s initial complaint and granted her leave
to amend. (ECF No. 5.)

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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)(C). Where a

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party 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)(C). 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. See

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United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (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 does not object to the Magistrate Judge’s recommendation as to

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dismissal of Count I with leave to amend.2 The Court agrees with the recommendation

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and will adopt it.

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Plaintiff argues in her Objection that the Court should not dismiss her breach of

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contract claim. While Plaintiff’s arguments are difficult to decipher, she appears to argue

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2In

fact, Plaintiff submitted her amendment of Count I. (ECF No. 12.) However,
the Amendment is improper in that it relates only to Count I. Because an amended
complaint supersedes a prior complaint, Plaintiff must file a second amended complaint
that incorporates her amendment as to Count I, not a stand alone Amendment. See Hal
Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)
(holding that “[t]he fact that a party was named in the original complaint is irrelevant; an
amended pleading supersedes the original”). The Court will therefore strike the
Amendment.
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that her breach of contract claim is an attempt to enforce rights under 7 C.F.R. § 273.15,

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including a right to require DWSS to act in good faith. (See ECF No. 11.) Plaintiff cites to

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cases addressing a breach of the implied covenant of good faith and fair dealing. (See

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id. at 2.) However, a claim for contractual breach of the implied covenant of good faith

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and fair dealing requires the existence of an agreement between the parties. See Hilton

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Hotels v. Butch Lewis Prods., Inc., 808 P.2d 919, 923 (Nev. 1991) (stating that a cause

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of action for breach of the covenant of good faith and fair dealing requires an an element

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that the parties were parties to an agreement). Plaintiffs’ allegations do not show the

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existence of an enforceable agreement to support her breach of contract claim in Count

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III, let alone a breach of the covenant of good faith and fair dealing implicit in such a

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agreement. The Court therefore overrules Plaintiff’s Objection.

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It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 10) is accepted and

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adopted in full. Plaintiff’s Fourteenth Amendment claim (Count I) is dismissed without

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prejudice and with leave to amend. Plaintiff may proceed on her ADA Title II claim

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(Count II). Plaintiff’s breach of contract claim (Count III) is dismissed with prejudice.

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If Plaintiff chooses to file a second amended complaint curing the deficiencies as

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to Count I, as outlined in the R&R, Plaintiff must file the amended complaint within thirty

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(30) days from date of entry of this order. If Plaintiff chooses not to file a second

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amended complaint within thirty (30) days, the Court will dismiss Count I with prejudice

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and the case will proceed on Count II.

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DATED THIS 25th day of September 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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