Downing v. Fumo

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4

5 JOSEPH DOWNING, Case No. 2:23-cv-00419-ART-NJK

6 Plaintiff, ORDER GRANTING PLAINTIFF v. LEAVE TO AMEND COMPLAINT 7 OSVALDO FUMO, et al., 8 Defendants. 9 10 11 This case involves claims by pro se Plaintiff Joseph Downing against 12 criminal defense attorneys, a law firm, and firm staff members for legal 13 malpractice and ineffective assistance of counsel, purportedly brought under 28 14 U.S.C. § 1983. (ECF No. 11.) Pending before the Court is Magistrate Judge 15 Koppe’s Report and Recommendation (“R&R”) (ECF No. 14) and Plaintiff’s 16 objection (ECF No. 15). For the reasons stated below, the Court rejects the R&R 17 and grants Plaintiff additional time to file a second amended complaint. 18 I. Review of Report and Recommendation 19 Under the Federal Magistrates Act, a Court “may accept, reject, or modify, 20 in whole or in part, the findings or recommendations made by [a] magistrate 21 judge.” 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's 22 report and recommendation, the court is required to “make a de 23 novo determination of those portions of the [report and recommendation] to which 24 objection is made.” 28 U.S.C. § 636(b)(1). A court is not required to conduct “any 25 review at all . . . of any issue that is not the subject of an objection.” Thomas v. 26 Arn, 474 U.S. 140, 149 (1985). 27 In the R&R, Judge Koppe explains that, after screening Plaintiff’s amended 28 complaint on July 27, 2023, the Court determined that the complaint failed to 1 || state a federal cause of action and otherwise failed to establish subject matter 2 || jurisdiction because it contained state law claims. (ECF No. 14 at 1, ECF No. 10 3 || at 2-3.) The Court ordered Plaintiff to file a second amended complaint by August 4 || 31, 2023, and warned that failure to comply may result in dismissal of the case. 5 || (ECF No. 10 at 4.) The Court then extended that deadline to October 2, 2023. 6 || (ECF No. 13.) Because Plaintiff failed to file a second amended complaint or seek 7 || further extension, the R&R recommends dismissal without prejudice. 8 Plaintiff filed an objection, stating that he did file a second amended 9 || complaint which cured the jurisdiction issue and other deficiencies as ordered 10 || but never received a copy of it being filed. (ECF No. 15.) There does not appear to 11 || be a record of Plaintiffs second amended complaint. Plaintiff explained that he 12 || has had issues with legal mail and law library access. (ECF No. 15.) Because 13 || Plaintiff has had difficulties filing an amended complaint, the Court grants 14 || Plaintiff additional time to amend his second amended complaint. 15 Il. Conclusion 16 The Court therefore orders that Judge Koppe’s R&R (ECF No. 14) is 17 || rejected. The Court grants Plaintiff an additional 30 days to file a second amended 18 || complaint correcting the deficiencies noted above and identified by Judge Koppe 19 || in the screening order (ECF No. 10). Plaintiff has until November 23, 2024 to file 20 || a second amended complaint. The amended complaint must be complete in itself 21 || without reference to any prior pleading and must sufficiently allege each claim 22 || and the involvement of each Defendant. 23 24 DATED THIS 25t day of October 2024. 25 26 Ares jlorect oun 2" ANNER.TRAUM 28 UNITED STATES DISTRICT JUDGE