Ancheta v. Government of Nevada

• Court: District Court, D. Nevada
• Decided: May 24, 2022
• Docket: 2:20-cv-01757
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5

6 Conrad G. Ancheta, Jr. Case No.: 2:20-cv-01757-CDS-DJA

7 Plaintiff, Order Adopting Report and 8 v. Recommendation

9 Government of Nevada, [ECF No. 3]

10 Defendant.

11 12 Before the Court is the Report and Recommendation (R&R) of United States Magistrate 13 Judge Daniel J. Albregts entered on September 23, 2020. ECF No. 3. Also pending before this 14 Court are Plaintiff’s objections to the R&R. ECF No. 4. 15 The Magistrate Judge recommends that Plaintiff’s complaint be dismissed without leave 16 to amend as it is factually frivolous and does not set forth a plausible claim. ECF No. 3 at 2. The 17 R&R also recommends that the Plaintiff’s application to proceed in forma pauperis be denied as 18 moot. Id. 19 I conducted a de novo review of the R&R pursuant to 28 U.S.C. § 636(b)(1)(C). When 20 reviewing the order of a Magistrate Judge, the order should only be set aside if the order is 21 clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a); LR IB 3-1(a); 28 U.S.C. § 636(b)(1)(A); 22 Laxalt v. McClatchy, 602 F. Supp. 214, 216 (D. Nev. 1985). A Magistrate Judge’s order is “clearly 23 erroneous” if the court has “a definite and firm conviction that a mistake has been committed.” 24 See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948); 1 Burdick v. Comm’r IRS, 979 F.2d 1369, 1370 (9th Cir. 1992). “An order is contrary to law when it 2 fails to apply or misapplies relevant statutes, case law or rules of procedure.” UnitedHealth Grp., 3 Inc. v. United Healthcare, Inc., No. 2:14-cv-00224-RCJ, 2014 U.S. Dist. LEXIS 129489, 2014 WL 4 4635882, at *1 (D. Nev. Sept. 16, 2014). I find that the Magistrate Judge’s R&R is not clearly 5 erroneous or contrary to the law. 6 While pro se pleadings must be liberally construed, see Balistreri v. Pacifica Police Dep’t, 901 7 F.2d 696, 699 (9th Cir. 1990), the Plaintiff’s complaint does not make any rational argument in 8 law or fact entitling him to relief. The complaint fails to state a cognizable claim1 or even any 9 claim at all, as I noted above, his objections are non-responsive to the R&R. As a result, I 10 overrule Plaintiff’s objections. 11 Accordingly, the report and recommendation of United States Magistrate Judge 12 Albregts’ Report and Recommendation (ECF No. 3) is AFFIRMED AND ADOPTED IN ITS 13 ENTIRETY. Accordingly, the Plaintiff’s complaint is DISMISSED without leave to amend and 14 Plaintiff’s application to proceed in forma pauperis is DENIED as moot. 15 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment 16 accordingly and close the case. 17 IT IS SO ORDERED. 18 DATED this 24th day of May, 2022. 19 ______________________________________ U.S. District Judge Cristina D. Silva 20

21 22 1 As part of my review, I looked to see if Plaintiff’s complaint contained any cognizable claims, 23 and further if there were any claims that needed to be dismissed as frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from 24 such relief. See 28 U.S.C. § 1915A(b)(1) and (2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and I applied the § 1915 standard when reviewing the adequacy of Plaintiff’s complaint. 2