Magnetic v. State of Nevada et al

Filing 4

ORDER - Judge Cobb's Report and Recommendation (ECF No. 3 ) is accepted and adopted in full. Plaintiff's application to proceed in forma pauperis (ECF No. 1 ) is GRANTED. NDOC shall pay Clerk $350 filing fee fro m inmate account. Clerk shall SEND a copy of this order to Finance and to NDOC Inmate Services (Email (NEF) to Finance; copy mailed to NDOC on 4/28/2021). Clerk is directed to file the Complaint (ECF No. 1 -1). Counts are dismissed as specifi ed herein. Any amended complaint is due within 30 days from the date of entry of this order. Clerk is directed to send Plaintiff the approved § 1983 Complaint form and instructions for the same (mailed to Plaintiff at Lakes Crossing on 4/2 8/2021). If Plaintiff fails to file an amended complaint curing the deficiencies outlined in this order, this action will be dismissed with prejudice. Signed by Chief Judge Miranda M. Du on 4/28/2021. (Copies have been distributed pursuant to the NEF - AB)

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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 *** 6 7 8 9 10 INFINITE MASTER MAGNETIC, JESSE JERMONE POINTER, aka Case No. 3:21-cv-00122-MMD-WGC ORDER Plaintiff, v. STATE OF NEVADA, et al., Defendants. 11 12 Pro se Plaintiff Infinite Master Magnetic aka Jesse Jerome Pointer, who is currently 13 in the custody of the Nevada Department of Corrections (“NDOC”) filed this complaint 14 under 42 U.S.C. § 1983 and application to proceed in forma pauperis (“IFP”) on March 15 11, 2021. (ECF Nos. 1, 1-1.) Before the Court is the Report and Recommendation (“R&R” 16 or “Recommendation”) of United States Magistrate Judge William G. Cobb (ECF No. 3), 17 screening Plaintiff’s Complaint. Judge Cobb recommends the Court grant Plaintiff’s IFP 18 application and dismiss his claims, some with prejudice and some with leave to amend. 19 Plaintiff had until April 19, 2021 to file an objection. To date, no objection to the R&R has 20 been filed. For this reason, and as explained below, the Court adopts the R&R, grants 21 Plaintiff’s IFP application, and will dismiss Plaintiff’s claims either with prejudice or with 22 leave to amend, as specified herein. 23 The Court “may accept, reject, or modify, in whole or in part, the findings or 24 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 25 fails to object to a magistrate judge’s recommendation, the Court is not required to 26 conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas 27 v. Arn, 474 U.S. 140, 149 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 28 1116 (9th Cir. 2003) (“De novo review of the magistrate judges’ findings and 1 recommendations is required if, but only if, one or both parties file objections to the 2 findings and recommendations.”) (emphasis in original); Fed. R. Civ. P. 72, Advisory 3 Committee Notes (1983) (providing that the Court “need only satisfy itself that there is no 4 clear error on the face of the record in order to accept the recommendation.”). 5 Because there is no objection, the Court need not conduct de novo review, and is 6 satisfied Judge Cobb did not clearly err. Here, Plaintiff asserts claims against a laundry 7 list of defendants, including the State of Nevada, Officer Brit, Officers John Doe, the Metro 8 Police Department (“LVMPD”), Clark County Detention, Judge Linda Bell, Officer Neaul, 9 the Public Defender’s Office, Lake’s Crossing Center, and Dr. Colepepper. 10 First, Judge Cobb found that Plaintiff’s account statement sufficiently 11 demonstrated he could not pay the filing fee. (ECF No. 3 at 2-3.) Judge Cobb 12 recommends granting Plaintiff’s IFP application. 13 Judge Cobb then recommends dismissing the State of Nevada and Lake’s 14 Crossing Center with prejudice and without leave to amend because they are not 15 “persons” for purposes of 42 U.S.C. § 1983 and, therefore, Plaintiff cannot assert claims 16 against them. (Id. at 5-6). Judge Cobb further recommends dismissing Judge Linda Bell 17 with prejudice and without leave to amend because she is entitled to absolute immunity 18 for acts performed in her official capacity. (Id. at 6.) 19 Judge Cobb also recommends the Court dismiss Clark County Detention Center 20 because it is not an entity that can sue or be sued. (Id. at 9.) However, because Plaintiff 21 could potentially maintain a claim against Clark County and LVMPD, Judge Cobb 22 recommends dismissing Plaintiff’s claims against LVMPD without prejudice and 23 permitting him to amend his complaint to include a theory of municipal liability against 24 either Clark County, LVMPD, or both. (Id. at 9-10.) 25 Judge Cobb construes Plaintiff’s allegations that he was beaten and robbed by 26 unidentified officers as a potential attempt to assert an excessive force claim against 27 Officer Neaul, Officer Brit, and/or potential John/Jane Doe officers. (Id. at 7-8.) Likewise, 28 Judge Cobb construes Plaintiff’s allegation that his property was taken during an arrest 2 1 as a potential due process claim. (Id. at 8-9.) Judge Cobb recommends dismissing both 2 the excessive force and due process claims because they are not sufficiently specific or 3 clear, but also recommends that Plaintiff should be granted leave to amend. 4 Judge Cobb construes Plaintiff’s claims that Dr. Colepepper forcibly gave him 5 injections against his religious belief and extreme objection as potentially stating a First 6 Amendment free exercise claim. (Id. at 10-13.) However, like Plaintiff’s excessive force 7 and due process property claims, his claim against Dr. Colepepper is not sufficiently clear. 8 Judge Cobb therefore recommends dismissing the claims against Dr. Colepepper without 9 prejudice and with leave to amend. 10 Finally, Judge Cobb construes Plaintiff’s claim that he was beaten while in lock up 11 and was not administered any medical care as a Fourteenth Amendment denial of 12 adequate medical care. (Id. at 14.) As with the other claims in the Complaint, Judge Cobb 13 found that Plaintiff does not allege sufficient facts to sustain the claim as it is currently 14 pleaded. Judge Cobb therefore recommends dismissing the denial of adequate medical 15 care without prejudice and with leave to amend. 16 17 18 19 The Court agrees with Judge Cobb. Having reviewed the R&R and the record in this case, the Court will adopt the R&R in full. It is therefore ordered that Judge Cobb’s Report and Recommendation (ECF No. 3) is accepted and adopted in full. 20 It is further ordered that Plaintiff’s application to proceed in forma pauperis (ECF 21 No. 1) without having to prepay the full filing fee is granted. Plaintiff will not be required to 22 pay an initial installment fee. Nevertheless, the full filing fee will still be due, pursuant to 23 28 U.S.C. § 1915, as amended by the Prisoner Litigation Reform Act. The movant herein 24 is permitted to maintain this action to conclusion without the necessity of prepayment of 25 fees or costs or the giving of security therefor. Pursuant to 28 U.S.C. § 1915(b)(2), the 26 Nevada Department of Corrections will pay to the Clerk of the United States District Court, 27 District of Nevada, 20% of the preceding month’s deposits to Plaintiff’s account (Jesse 28 Jerome Pointer, #1590932), in the months that the account exceeds $10.00, until the full 3 1 $350.00 filing fee has been paid for this action. The Clerk of the Court will send a copy of 2 this order to the Finance Division of the Clerk’s Office. The Clerk of the Court will also 3 send a copy of this order to the attention of the Chief of Inmate Services for the Nevada 4 Department of Corrections, P.O. Box 7011, Carson City, NV 89702. 5 It is further ordered that, regardless of the success of Plaintiff’s action, the full filing 6 fee will still be due, pursuant to 28 U.S.C. §1915, as amended by the Prisoner Litigation 7 Reform Act. 8 The Clerk of Court is directed to file Plaintiff’s complaint (ECF No. 1-1). 9 It is further ordered that Plaintiff’s claims against the State of Nevada and Lake’s 10 Crossing Center are dismissed with prejudice and without leave to amend. It is further ordered that Plaintiff’s claims against Judge Linda Bell are dismissed 11 12 with prejudice and without leave to amend. 13 It is further ordered that Plaintiff’s claims against Clark County Detention Center 14 are dismissed with prejudice and without leave to amend. However, Plaintiff is granted 15 leave to amend to assert a claim based on a municipal theory of liability against Clark 16 County. It is further ordered that Plaintiff’s claims against Las Vegas Metropolitan Police 17 18 Department are dismissed without prejudice, with leave to amend. It is further ordered that Plaintiff’s claims against Dr. Colepepper are dismissed 19 20 without prejudice, with leave to amend. 21 It is further ordered that Plaintiff’s excessive force and property claims against 22 Officers Neaul and Brit, and potential John or Jane Doe Officers, are dismissed without 23 prejudice, with leave to amend. It is further ordered that Plaintiff’s First Amendment claims are dismissed without 24 25 prejudice, with leave to amend. It is further ordered that Plaintiff’s denial of adequate medical care claims are 26 27 dismissed without prejudice, with leave to amend. 28 /// 4 1 It is further ordered that, if Plaintiff chooses to file an amended complaint curing 2 the deficient of his complaint, as outlined in this order, he must file the amended complaint 3 within 30 days from the date of entry of this order. 4 The Clerk of Court is further directed to send Plaintiff the approved form for filing 5 a § 1983 complaint and instructions for the same. If Plaintiff chooses to file an amended 6 complaint, he should use the approved form and he will write the words “First Amended” 7 above the words “Civil Rights Complaint” in the caption. 8 9 10 It is further ordered that, if Plaintiff fails to file an amended complaint curing the deficiencies outlined in this order, this action will be dismissed with prejudice. DATED THIS 28th Day of April 2021. 11 12 13 14 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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