Bailey v. Nevada Parole Board

Opinion

3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** ANTHONY BAILEY, 8 Case No. 2:22-cv-00306-GMN-VCF

9 Plaintiff, ORDER 10 vs. -And- 11 NEVADA PAROLE BOARD, REPORT AND RECOMMENDATION FOR Defendant. 12 DISMISSAL

14 I previously granted incarcerated pro se plaintiff Anthony Bailey’s application to proceed in 15 16 forma pauperis and dismissed his complaint without prejudice with leave to amend. ECF No. 3. I found 17 that plaintiff’s civil rights complaint regarding his issues with the parole board “attack[ed] the fact or 18 duration of his custody pursuant to a criminal conviction or sentence must be brought by way of a 19 petition for a writ of habeas corpus.” Id. at 4. I noted that he should, “file a habeas corpus petition and an 20 in forma pauperis application in a new action” Id. at 5. While I doubted that that he would be able to 21 articulate claims in this action, I noted that since it was, “possible that these deficiencies may be cured 22 through amendment.” Id. I gave plaintiff thirty days to file an amended complaint and warned that, 23 “[f]ailure to timely file an amended complaint that addresses the deficiencies noted in this Order may 24 result in a recommendation that the dismissed claims be dismissed with prejudice.” Id. 25 I also noted in my order, “that plaintiff has filed dozens of duplicative actions in this Court. I 1 warn[ed] plaintiff that his behavior in this Court is bordering on vexatious.” Id. at 6. I cautioned, 2 “plaintiff that continuing to file duplicative and/or frivolous lawsuits may result in adverse 3 4 consequences, including possible sanctions or a finding that he is a vexatious litigant.” Id. at 7. 5 Plaintiff did not file an amended complaint or an objection to my order. Plaintiff did file a 6 “motion for clarification” which is difficult to read as it is written in sloppy cursive. ECF No. 4. Reading 7 his motion for clarification liberally, he appears to “clarify” to the Court that none of his past cases were 8 litigated vexatiously. Id. Since I dismissed plaintiff’s complaint based on the allegations in his complaint 9 and only warned plaintiff that vexatious litigation tactics would not be tolerated in this case, I deny 10 plaintiff’s motion regarding his clarification of his past and concurrent cases as unnecessary. Plaintiff 11 will not be prejudiced because he is free to file an objection to this order/report and recommendation to 12 Judge Navarro. For the reasons discussed in my order (ECF No. 3), plaintiff’s case should be dismissed. 13 ACCORDINGLY, 14 I RECOMMEND that this action be DISMISSED and Judgment entered. 15 I ORDER that plaintiff’s motion for clarification (ECF No. 4) is DENIED. 16 17 NOTICE 18 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 19 recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 20 of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 21 may determine that an appeal has been waived due to the failure to file objections within the specified 22 time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file 23 objections within the specified time and (2) failure to properly address and brief the objectionable issues 24 waives the right to appeal the District Court's order and/or appeal factual issues from the order of the 25 2 District Court. Martinez v. YIst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch.

5 Dist., 708 F.2d 452, 454 (9th Cir. 1983). Pursuant to LR IA 3-1, the plaintiff must immediately file

3 || Written notification with the court of any change of address. The notification must include proof of 4 Service upon each opposing party’s attorney, or upon the opposing party if the party is unrepresented by 5 || counsel. Failure to comply with this rule may result in dismissal of the action. 6 IT IS SO ORDERED. 7 DATED this 4th day of May 2022. os

9 CAM FERENBACH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25