3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 JULIUS BRADFORD, Case No. 2:20-cv-00871-ART-BNW Plaintiff, 7 v. ORDER
8 STEVE SISOLAK, et al., 9 Defendants. 10 Pro se Plaintiff Julius Bradford (“Bradford”) has moved for leave to file a 11 Second Amended Complaint (SAC) suing former Governor Steve Sisolak, 12 Attorney General Aaron Ford, and Director of the Legislative Counsel Bureau 13 Brenda Erdoes in their individual and official capacities. He also seeks to sue 14 Former Director of the Legislative Counsel Bureau Rick Combs in his individual 15 capacity and District Attorney Steve Wolfson in his official capacity as well as 16 Clark County and the Clark County Board of Commissioners. (ECF No. 56.) 17 United States Magistrate Judge Weksler has screened the SAC under 28 U.S.C. 18 § 1915A(a) because Plaintiff is an incarcerated individual seeking redress from a 19 governmental entity. 28 U.S.C. § 1915A(a). 20 Before the Court is the Screening Order and Report and Recommendation 21 (“R&R” or “Recommendation”) of Judge Weksler (ECF No. 59), screening 22 Plaintiff’s SAC and ordering that Bradford’s claim regarding his (in)ability to 23 challenge NRS 193.190, 193.200, and 195.020 be dismissed without prejudice 24 and with leave to amend and ordering that if Plaintiff chooses to file a Third 25 Amended Complaint, he must do so by April 7, 2023. The R&R recommends that 26 Plaintiff’s remaining claims be dismissed with prejudice because amendment 27 would be futile. For the reasons set forth below, the Court adopts the R&R. 28 1 I. Discussion 2 The Court “may accept, reject, or modify, in whole or in part, the findings 3 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where 4 a party fails to object to a magistrate judge’s recommendation, the Court is not 5 required to conduct “any review at all . . . of any issue that is not the subject of 6 an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also United States v. 7 Reyna-Tapia, 328 F.3d 1114, 1116 (9th Cir. 2003) (“De novo review of the 8 magistrate judges’ findings and recommendations is required if, but only if, one 9 or both parties file objections to the findings and recommendations.”) (emphasis 10 in original); Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (providing that 11 the Court “need only satisfy itself that there is no clear error on the face of the 12 record in order to accept the recommendation.”). 13 A. Claim 1: Access to Courts and Due Process1 14 Plaintiff alleges that he was denied access to the courts and due process 15 when the state court denied his motion to invalidate NRS 200.020 without 16 comparing the provision “against any law found in the official Statutes of 17 Nevada.” (ECF No. 56-1 at 6–10.) He asserts that he likely would have prevailed 18 on his motion but for Defendant Wolfson’s bad-faith opposition. (Id. at 10, 22.) 19 Judge Weksler found that Plaintiff failed to state a claim under any theory and 20 recommends that this claim be dismissed with prejudice because amendment 21 would be futile. Plaintiff did not object and the Court is satisfied that Judge 22 Weksler did not clearly err, the Court adopts the R&R with respect to this claim. 23 B. Claim 2: Municipal Liability 24 Plaintiff alleges that Clark County and the Clark County Board of 25 Commissioners know that certain NRS provisions and terms are invalid, yet the 26 entities, through custom or policy, improperly instruct county officers and 27
28 1 The Court uses the numbering system in the R&R to refer to Plaintiff’s claims because he 1 employees to use the NRS and Section 9 of the Statutes of Nevada to oppose 2 challenges to the NRS’ validity. (ECF No. 56-1 at 10.) Judge Weksler found that 3 because Plaintiff has not stated a claim giving rise to a constitutional violation, 4 there can be no municipal liability. Judge Weksler recommends that this claim 5 be dismissed with prejudice because amendment would be futile. Plaintiff did 6 not object and the Court is satisfied that Judge Weksler did not clearly err, the 7 Court adopts the R&R with respect to this claim. 8 C. Claim 3: Ability to Challenge NRS 193.190, 193.200, and 195.020 9 Plaintiff alleges that he has been precluded from challenging the validity 10 of other NRS provisions—NRS 193.190, 193.200, and 195.020—because of the 11 alleged actions by Defendants Ford, Sisolak, Wolfson, Clark County, and the 12 Clark County Board of Commissioners. (ECF No. 56-1 at 11–12, 26.) Although 13 Plaintiff has not specified a particular legal theory, it appears that he is arguing 14 an unconstitutional chilling effect and denial of access to the courts. 15 The R&R found Bradford’s alleged constitutional violations too speculative. 16 It also found that this issue may not be ripe for consideration because Plaintiff 17 alleges that despite his fear of frustrating the trial court, he plans to nonetheless 18 challenge NRS 195.020 before his two state court cases proceed to trial. Judge 19 Weksler could not conclude, however, that it would necessarily be futile to allow 20 Plaintiff to amend this claim but cautioned Plaintiff that a third amended 21 complaint must allege with specificity what legal theory he is moving under and 22 each Defendant’s role. The R&R further advises Plaintiff that to the extent he is 23 seeking this Court to declare Section 9 of the Statutes of Nevada invalid, the 24 Court cannot do so. Plaintiff did not object and the Court is satisfied that Judge 25 Weksler did not clearly err, the Court adopts the R&R with respect to this claim. 26 D. Claim 4: Right to Petition for Redress and Due Process 27 Plaintiff next alleges that Defendants Rick Combs, Brenda Erdoes, 28 1 Aaron Ford, and Steve Sisolak “discarded” the tort claim he filed in 2019 where 2 he asserted that the NRS contains provisions of law not found in the Statutes of 3 Nevada. (ECF No. 56-1 at 18.) In short, Plaintiff alleges Defendants’ actions have 4 deprived him of his right to petition the government for redress and due process 5 of law. (Id. at 13, 19–20.) Thus, because the tort claims were not properly 6 submitted under Nevada law, Plaintiff’s alleged due process violation cannot be 7 traced to Defendants’ alleged inactions. The R&R further notes that it previously 8 granted Plaintiff the opportunity to amend this claim, yet Plaintiff has filed the 9 same supporting exhibits. Thus, the R&R recommends that this claim be 10 dismissed with prejudice because amendment would be futile. Plaintiff did not 11 object and the Court is satisfied that Judge Weksler did not clearly err, the Court 12 adopts the R&R with respect to this claim. 13 E.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 JULIUS BRADFORD, Case No. 2:20-cv-00871-ART-BNW Plaintiff, 7 v. ORDER
8 STEVE SISOLAK, et al., 9 Defendants. 10 Pro se Plaintiff Julius Bradford (“Bradford”) has moved for leave to file a 11 Second Amended Complaint (SAC) suing former Governor Steve Sisolak, 12 Attorney General Aaron Ford, and Director of the Legislative Counsel Bureau 13 Brenda Erdoes in their individual and official capacities. He also seeks to sue 14 Former Director of the Legislative Counsel Bureau Rick Combs in his individual 15 capacity and District Attorney Steve Wolfson in his official capacity as well as 16 Clark County and the Clark County Board of Commissioners. (ECF No. 56.) 17 United States Magistrate Judge Weksler has screened the SAC under 28 U.S.C. 18 § 1915A(a) because Plaintiff is an incarcerated individual seeking redress from a 19 governmental entity. 28 U.S.C. § 1915A(a). 20 Before the Court is the Screening Order and Report and Recommendation 21 (“R&R” or “Recommendation”) of Judge Weksler (ECF No. 59), screening 22 Plaintiff’s SAC and ordering that Bradford’s claim regarding his (in)ability to 23 challenge NRS 193.190, 193.200, and 195.020 be dismissed without prejudice 24 and with leave to amend and ordering that if Plaintiff chooses to file a Third 25 Amended Complaint, he must do so by April 7, 2023. The R&R recommends that 26 Plaintiff’s remaining claims be dismissed with prejudice because amendment 27 would be futile. For the reasons set forth below, the Court adopts the R&R. 28 1 I. Discussion 2 The Court “may accept, reject, or modify, in whole or in part, the findings 3 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where 4 a party fails to object to a magistrate judge’s recommendation, the Court is not 5 required to conduct “any review at all . . . of any issue that is not the subject of 6 an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also United States v. 7 Reyna-Tapia, 328 F.3d 1114, 1116 (9th Cir. 2003) (“De novo review of the 8 magistrate judges’ findings and recommendations is required if, but only if, one 9 or both parties file objections to the findings and recommendations.”) (emphasis 10 in original); Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (providing that 11 the Court “need only satisfy itself that there is no clear error on the face of the 12 record in order to accept the recommendation.”). 13 A. Claim 1: Access to Courts and Due Process1 14 Plaintiff alleges that he was denied access to the courts and due process 15 when the state court denied his motion to invalidate NRS 200.020 without 16 comparing the provision “against any law found in the official Statutes of 17 Nevada.” (ECF No. 56-1 at 6–10.) He asserts that he likely would have prevailed 18 on his motion but for Defendant Wolfson’s bad-faith opposition. (Id. at 10, 22.) 19 Judge Weksler found that Plaintiff failed to state a claim under any theory and 20 recommends that this claim be dismissed with prejudice because amendment 21 would be futile. Plaintiff did not object and the Court is satisfied that Judge 22 Weksler did not clearly err, the Court adopts the R&R with respect to this claim. 23 B. Claim 2: Municipal Liability 24 Plaintiff alleges that Clark County and the Clark County Board of 25 Commissioners know that certain NRS provisions and terms are invalid, yet the 26 entities, through custom or policy, improperly instruct county officers and 27
28 1 The Court uses the numbering system in the R&R to refer to Plaintiff’s claims because he 1 employees to use the NRS and Section 9 of the Statutes of Nevada to oppose 2 challenges to the NRS’ validity. (ECF No. 56-1 at 10.) Judge Weksler found that 3 because Plaintiff has not stated a claim giving rise to a constitutional violation, 4 there can be no municipal liability. Judge Weksler recommends that this claim 5 be dismissed with prejudice because amendment would be futile. Plaintiff did 6 not object and the Court is satisfied that Judge Weksler did not clearly err, the 7 Court adopts the R&R with respect to this claim. 8 C. Claim 3: Ability to Challenge NRS 193.190, 193.200, and 195.020 9 Plaintiff alleges that he has been precluded from challenging the validity 10 of other NRS provisions—NRS 193.190, 193.200, and 195.020—because of the 11 alleged actions by Defendants Ford, Sisolak, Wolfson, Clark County, and the 12 Clark County Board of Commissioners. (ECF No. 56-1 at 11–12, 26.) Although 13 Plaintiff has not specified a particular legal theory, it appears that he is arguing 14 an unconstitutional chilling effect and denial of access to the courts. 15 The R&R found Bradford’s alleged constitutional violations too speculative. 16 It also found that this issue may not be ripe for consideration because Plaintiff 17 alleges that despite his fear of frustrating the trial court, he plans to nonetheless 18 challenge NRS 195.020 before his two state court cases proceed to trial. Judge 19 Weksler could not conclude, however, that it would necessarily be futile to allow 20 Plaintiff to amend this claim but cautioned Plaintiff that a third amended 21 complaint must allege with specificity what legal theory he is moving under and 22 each Defendant’s role. The R&R further advises Plaintiff that to the extent he is 23 seeking this Court to declare Section 9 of the Statutes of Nevada invalid, the 24 Court cannot do so. Plaintiff did not object and the Court is satisfied that Judge 25 Weksler did not clearly err, the Court adopts the R&R with respect to this claim. 26 D. Claim 4: Right to Petition for Redress and Due Process 27 Plaintiff next alleges that Defendants Rick Combs, Brenda Erdoes, 28 1 Aaron Ford, and Steve Sisolak “discarded” the tort claim he filed in 2019 where 2 he asserted that the NRS contains provisions of law not found in the Statutes of 3 Nevada. (ECF No. 56-1 at 18.) In short, Plaintiff alleges Defendants’ actions have 4 deprived him of his right to petition the government for redress and due process 5 of law. (Id. at 13, 19–20.) Thus, because the tort claims were not properly 6 submitted under Nevada law, Plaintiff’s alleged due process violation cannot be 7 traced to Defendants’ alleged inactions. The R&R further notes that it previously 8 granted Plaintiff the opportunity to amend this claim, yet Plaintiff has filed the 9 same supporting exhibits. Thus, the R&R recommends that this claim be 10 dismissed with prejudice because amendment would be futile. Plaintiff did not 11 object and the Court is satisfied that Judge Weksler did not clearly err, the Court 12 adopts the R&R with respect to this claim. 13 E. Remaining Claims 14 Plaintiff’s remaining claims center around his contention that all NRS 15 provisions should be invalidated because of Section 9’s deficiencies, including it 16 being vague and overbroad. (ECF No. 56-1 at 35.) He also argues that both 17 Sections 8 and 9 of the Statutes of Nevada violate procedural and substantive 18 due process. (Id. at 29–34.) But the state court has already addressed this line 19 of argument and the Court lacks jurisdiction to revisit or invalidate that decision. 20 Plaintiff further alleges that NRS 220.170(3) violates the Equal Protection 21 Clause. ECF No. 56-1 at 42. The R&R recommends dismissal with prejudice 22 because Plaintiff did not allege an injury and amendment would be futile. 23 Plaintiff did not object and the Court is satisfied that Judge Weksler did not 24 clearly err, the Court adopts the R&R with respect to the remaining claims. 25 26 IT IS THEREFORE ORDERED that Magistrate Judge Weksler’s Report and 27 Recommendation (ECF No. 59) is accepted and adopted in full; 28 1 IT IS FURTHER ORDERED that Plaintiff's motion for leave to file a second 2 || amended complaint (ECF No. 56) is GRANTED. The Clerk of the Court is kindly 3 || directed to file Plaintiffs attached proposed complaint (56-1) as the Second 4 || Amended Complaint; 5 IT IS FURTHER ORDERED that Claim 3 of Plaintiffs Second Amended 6 || Complaint is dismissed without prejudice and with leave to amend consistent 7 || with this Order and the Report and Recommendation. 8 IT IS FURTHER ORDERED that Plaintiffs remaining claims are dismissed 9 || with prejudice consistent with this Order and the Report and Recommendation. 10 IT IS FURTHER ORDERED if Plaintiff chooses to file a Third Amended 11 || Complaint, he must do so by April 7, 2023. Failure to meet this deadline may 12 || result in dismissal of this case; 13 14 DATED THIS 318? Day of March 2023. 15 16 A, jad 17 ANNE R. TRAUM 18 UNITED STATES DISTRICT JUDGE
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