Allison v. U.S. District Courts Clerks Office

• Court: District Court, D. Nevada
• Decided: August 3, 2022
• Docket: 2:22-cv-01114
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 4

5 RONALD J. ALLISON, Case No.: 2:22-cv-01114-CDS-EJY

6 Plaintiff, Order Adopting Report and 7 v. Recommendation of the Magistrate Judge

8 UNITED STATES COURTS CLERKS (ECF No. 2) OFFICE, 9

Defendants. 10 11 On July 19, 2022, United States Magistrate Judge Elayna J. Youchah issued a Report and 12 Recommendation (“R&R”) finding that Plaintiff failed to file an in forma pauperis application and 13 that the single-page initiating document in this case violated the local rules. ECF No. 2. The 14 R&R recommends that I dismiss with prejudice Plaintiff’s claims because the Clerk’s Office is 15 immune from suit.1 Id. (citing Polk v. Du, 2016 WL 1725974, at *5 (D. Nev. Mar. 4, 2016)). The 16 R&R further recommended that I give Plaintiff until August 19, 2022, to show cause as to why 17 he should not be declared a vexatious litigant. Id. at 5. Consistent with the local rules, the R&R 18 states that any objections to the R&R must be filed in writing within fourteen days of June 19, 19 2022, making any objections due on or before August 2, 2022. To date, no objections have been 20 filed. Thus, I adopt the R&R in its entirety. 21 I. Discussion 22 “[N]o review is required of a magistrate judge’s report and recommendation unless 23 objections are filed.” Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003); see also Thomas 24 v. Arn, 474 U.S. 140, 150 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

1 The defendants are identified as “the clerks.” ECF No. 1-2. 1 Here, Plaintiff did not object to the R&R. 2 While de novo review is not required because Plaintiff failed to file objections, I 3 nevertheless conducted a de novo review of the issues set forth in the report and 4 recommendation. See 28 U.S.C. § 636(b)(1). When reviewing the order of a Magistrate Judge, the 5 order should only be set aside if the order is clearly erroneous or contrary to law. Fed. R. Civ. P. 6 72(a); LR IB 3-1(a); 28 U.S.C. § 636(b)(1)(A); Laxalt v. McClatchy, 602 F. Supp. 214, 216 (D. Nev. 7 1985). A Magistrate Judge's order is “clearly erroneous” if the court has “a definite and firm 8 conviction that a mistake has been committed.” See United States v. United States Gypsum Co., 333 9 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948); Burdick v. Comm’r IRS, 979 F.2d 1369, 1370 (9th 10 Cir. 1992). “An order is contrary to law when it fails to apply or misapplies relevant statutes, 11 case law or rules of procedure.” UnitedHealth Grp., Inc. v. United Healthcare, Inc., No. 2:14-cv-00224- 12 RCJ, 2014 U.S. Dist. LEXIS 129489, 2014 WL 4635882, at *1 (D. Nev. Sept. 16, 2014). 13 My review of the R&R reveals it was not clearly erroneous or contrary to the law. 14 Magistrate Judge Youchah properly identified the deficiencies in Plaintiff’s initiating documents. 15 Plaintiff submitted a single-page initiating document that in only one paragraph lists the alleged 16 wrongdoing by the U.S. District Court Clerk’s Office. ECF No. 2 at 2 (referring to ECF No 1-2 at 17 1). In the second paragraph, Plaintiff alleged conclusory statements that the Clerk’s Office is 18 using Local Rules and Nevada Revised Statutes to break federal laws. Id. As properly set forth in 19 the R&R, Magistrate Judge Youchah correctly determined that there are no facts to support the 20 overbroad allegations against unidentified persons in the “Clerk’s Office,” and therefore they are 21 meritless. ECF No. 2 at 2. 22 The recommendation that Plaintiff should have to show cause why he should not be 23 deemed a vexatious litigant is supported by the record. The All Writs Act, set forth at 28 U.S.C. 24 § 1651(a), provides district courts with the inherent power to enter pre-filing orders against 2 1 vexatious litigants. Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (citing Molski v. Evergreen 2 Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007)). The Ninth Circuit has outlined the following 3 four factors for district courts to examine before deeming a litigant “vexatious,” and entering any 4 pre-filing orders: (1) the litigant must be given notice and a chance to be heard; (2) the district 5 court must compile “an adequate record for review”; (3) the district court must make 6 substantive findings about the frivolous or harassing nature of the plaintiff's litigation; and (4) 7 the vexatious litigant order “must be narrowly tailored to closely fit the specific vice 8 encountered.” Id. (citing De Long, 912 F.2d at 1147). “The record supporting such an order ‘needs 9 to show, in some manner, that the litigant's activities were numerous or abusive.’” Harris, 863 10 F.3d at 1143 (citing De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990)). A pre-filing order is 11 only appropriate “after a cautious review of the pertinent circumstances.” Molski, 500 F.3d at 12 1057. 13 The R&R identifies 123 lawsuits filed by Plaintiff in the United States District Court for 14 the District of Nevada. ECF No. 2 at Exhibit 1 (compiling list of cases). Of those 123 actions, the 15 Plaintiff was allowed to proceed in one case. Id. at 4 n.1. Like this case, Plaintiff’s prior cases were 16 filed against entities and individuals that could not proceed as a matter of law. See id. at 3-4 17 (discussing prior cases and frivolous or meritless claims set forth therein). The endless filings, 18 some of which (like this case) do not comply with the local rules2 in even bringing the action, 19 suggest that Plaintiff does not have a good faith basis for bringing the cases at all. 20 . . . 21 . . . 22 . . . 23 2 The R&R states there is an excess of 50 occasions where Plaintiff was provided instructions on 24 filing the in forma pauperis application. ECF No. 2 at 4. 3 1 II. Conclusion 2 For the reasons set forth in the Order, 3 IT IS THEREFORE ORDERED that the Magistrate Judge Youchah’s Report and 4 Recommendation (ECF No. 2) is ADOPTED in its entirety. 5 IT IS FURTHER ORDERED that, as set forth in this order, the claim set forth in the 6 initiating documents is DISMISSED WITH PREJUDICE. 7 IT IS FURTHER ORDERED that Plaintiff shall show cause as to why he should not be 8 deemed a vexatious litigant under the All Writs Act, 28 U.S.C. § 1651(a), for the reasons detailed 9 herein, and in the Report and Recommendation (ECF No. 2). Plaintiff shall submit his response 10 to this Order to Show Cause no later than August 19, 2022. 11 IT IS FURTHER ORDERED that the list of Plaintiff’s prior cases (ECF No. 2 at Exhibit 12 1) is incorporated in this Order as if fully set forth herein. 13 DATED this 3rd day of August, 2022. 14 ______________________________________ Cristina D. Silva 15 United States District Court Judge 16

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