El v. Charter

• Court: District Court, D. Nevada
• Decided: August 16, 2022
• Docket: 2:21-cv-01910
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 Case No.: 2:21-cv-001910-CDS-DJA 4 Sade Renee El,

5 Plaintiff, Order Adopting Reports and Recommendations of the Magistrate Judge 6 v. (ECF Nos. 11; 16) 7 Stephanie Charter, et al.,

8 Defendants.

9 10 This action stems from a series of filings brought by Plaintiff Sade Renee El in her 11 attempt to sue a variety of state court judges, government attorneys, police officers, and other 12 professionals in the legal field. United States Magistrate Judge Daniel J. Albregts responded to 13 those filings in two different reports and recommendations. For the reasons set forth herein, I 14 adopt in full both Reports and Recommendations, ECF Nos. 11, 16, and dismiss this case. 15 I. Relevant Background Information 16 On December 22, 2021, United States Magistrate Judge Daniel J. Albregts issued an order 17 denying Plaintiff’s in forma pauperis (IFP) application and declining to review Plaintiff’s amended 18 complaint. See ECF No. 3 (advising Plaintiff that because her application was unsigned, it could 19 not be reviewed). As a result of the incomplete IFP application, the Court declined to screen 20 Plaintiff’s amended complaint but allowed Plaintiff the opportunity to cure the IFP application 21 issues on or before January 5, 2022. Id. 22 On January 7, 2022, Plaintiff filed an amended complaint, ECF No. 5, and another IFP 23 application, ECF No. 4. On January 27, 2022, Magistrate Judge Albregts issued a screening order 24 denying Plaintiff’s second IFP application for being incomplete, and pursuant to 28 U.S.C. § 1 1915(e)(2)(B), did not screen the amended complaint. ECF No. 6. The screening order gave 2 Plaintiff until Thursday, February 10, 2022 to submit either a: “(1) complete application to 3 proceed in forma pauperis in compliance with 28 U.S.C. § 1915(a)(1) and LSR 1-12; or (2) pay the 4 full $402 fee for a civil action, which includes the $350 filing fee and the $52 administrative fee.” 5 Id. The screening order also advised Plaintiff that failure to comply with the order would result 6 in a recommendation to the District Judge that the case be dismissed. Id. Plaintiff submitted an 7 amended, third IFP on February 11, 2022. ECF No. 7.1 8 On April 29, 2022, Magistrate Judge Albregts issued a Report and Recommendation 9 (first R&R) advising that I grant Plaintiff’s third IFP pursuant to 28 U.S.C. 1915(a) but dismiss 10 the amended complaint. See generally ECF No. 11. Specifically, the first R&R recommends 11 dismissing with prejudice the causes of action that allege criminal violations (18 U.S.C. § 241, 18 12 U.S.C. § 242, 18 U.S.C. § 1512, and 18 U.S.C. § 2071) because those statutes that do not create a 13 private right of action. Id. at 8. The first R&R also recommends that I dismiss with prejudice the 14 asserted claims against defendants with qualified immunity (Defendants Eighth Judicial District 15 Court, Judge Stephanie Charter, Clark County District Attorney Steve Wolfson, Judge Belinda 16 T. Harris, Hearing Master Adriana Rincon White, and Clerk of Court Steve Gierson). Id. 17 Magistrate Judge Albregts recommends dismissing the remaining causes of action (42 U.S.C. § 18 1985(3); unreasonable search and seizure; unlawful arrest; and due process violation) without 19 prejudice due to pleading deficiencies. The first R&R recommended giving Plaintiff leave to file 20 a second amended complaint to the extent Plaintiff could cure the deficiencies identified by 21 1 ECF No. 6 was returned as undeliverable to the Clerk’s Office. See ECF No. 8. A change of 22 address was filed by Plaintiff on April 18, 2022. ECF No. 10. A second notice to Plaintiff informing her that the case was administratively reassigned to this Court was again returned as undeliverable on May 23 23, 2022. See ECF No. 13. This Court ordered that Plaintiff file her updated address with the Clerk pursuant to Local Rule IA 3-1. ECF No. 14. Plaintiff effectively did so in filing her amended complaint 24 with a new address. ECF No. 15 at 1. 2 1 Magistrate Judge Albregts. Id. Objections to the first R&R were due by May 13, 2022. See id.; see 2 also LR IB 3-2(a). Plaintiff did not file any objections by May 13, 2022. 3 On May 10, 2022, the court received information that the Plaintiff did in fact receive a 4 copy of the first R&R. A week later, Plaintiff filed a motion to extend time to file an answer 5 (ECF No. 12) which the court liberally construed as a request for additional time to file 6 objections to the first R&R or file an amended complaint. Accordingly, the Court granted 7 Plaintiff’s motion to extend and ordered that Plaintiff file any objections to the Report and 8 Recommendation (R&R) on or before June 3, 2022, and further advised that if Plaintiff intended 9 to file an amended complaint, it must be filed on or before June 3, 2022. ECF No. 14. Plaintiff did 10 not file anything by the June 3, 2022, deadline. 11 Four days after the deadline, on June 7, 2022, Plaintiff filed an amended complaint. ECF 12 No. 15. Magistrate Judge Albregts again screened the amended complaint and issued a second 13 Report and Recommendation (second R&R) on July 27, 2022, recommending again that the 14 complaint be dismissed because it suffered from the same deficiencies as the prior complaint. 15 ECF No. 16. Magistrate Judge Albregts found that, except for Steve Gierson, Plaintiff re-named 16 each of the same defendants that he originally recommended by dismissed from the action with 17 prejudice based on qualified immunity and further noted that the allegations in the complaint 18 were conclusory. Id. at 2-3. The second R&R advises that the remainder of Plaintiff’s allegations 19 (which included the additional of a new defendant, Officer P. Anderson) were too conclusory for 20 the Court to constitute claims upon which relief could be granted. Id. at 3. Finally, the second 21 R&R notes that Plaintiff re-alleged claims based on criminal statutes that provide for no private 22 right of action nor civil liability. Id. Consequently, the second R&R recommends dismissing the 23 complaint without prejudice, with leave to amend. Id. Plaintiff was again advised that any 24 objections to the second R&R must submitted in writing and supported by points and 3 1 authorities within fourteen days of being served with the report and recommendation, and 2 further that failure to file a timely objection(s) may waive the right to appeal the district court’s 3 order. Id. The deadline to file any objections or a second amended complaint was August 10, 4 2022. Plaintiff did not file anything by the August 10, 2022. 5 II. Legal Standard 6 When reviewing the order of a Magistrate Judge, the order should only be set aside if the 7 order is clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a); LR IB 3-1(a); 28 U.S.C. § 8 636(b)(1)(A); Laxalt v. McClatchy, 602 F. Supp. 214, 216 (D. Nev. 1985). A Magistrate Judge’s order 9 is “clearly erroneous” if the court has “a definite and firm conviction that a mistake has been 10 committed.” See United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Burdick v. Comm’r IRS, 979 11 F.2d 1369, 1370 (9th Cir. 1992). “An order is contrary to law when it fails to apply or misapplies 12 relevant statutes, case law or rules of procedure.” UnitedHealth Grp., Inc. v. United Healthcare, Inc., 13 2014 WL 4635882, at *1 (D. Nev. Sept. 16, 2014). 14 This Court “may accept, reject, or modify, in whole or in part, the findings or 15 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party timely 16 objects to a magistrate judge's report and recommendation, then the court is required to “make a 17 de novo determination of those portions of the [report and recommendation] to which objection 18 is made.” 28 U.S.C. § 636(b)(1). However, no review is required “of a magistrate judge’s report 19 and recommendation unless objections are filed.” Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 20 (D. Ariz. 2003); see also Thomas v. Arn, 474 U.S. 140, 150 (1985); United States v. Reyna-Tapia, 328 F.3d 21 1114, 1121 (9th Cir. 2003). 22 III. Analysis 23 Here, Plaintiff did not file objections to either of the pending Reports and 24 Recommendations. While de novo review is not required because Plaintiff failed to file objections, 4 1 I nevertheless conducted a de novo review of the issues set forth in both reports and 2 recommendations pursuant to 28 U.S.C. § 636(b)(1) and find that Magistrate Judge Albregts set 3 forth the proper legal analysis and factual basis in the R&R (ECF No. 19). Stated otherwise, the 4 R&Rs were neither clearly erroneous nor contrary to the law. Accordingly, the first R&R and 5 second R&R are adopted in their entireties. 6 IV. Conclusion 7 IT IS THEREFORE ORDERED that the Magistrate Judge Albregt’s Report and 8 Recommendation (ECF No. 11) is ADOPTED in its entirety. 9 IT IS THEREFORE ORDERED that the Magistrate Judge Albregt’s Report and 10 Recommendation (ECF No. 16) is ADOPTED in its entirety. 11 IT IS FURTHER ORDERED that the Plaintiff’s Amended Complaint (ECF No. 15) is 12 STRICKEN. 13 IT IS FURTHER ORDERED that, to the extent Plaintiff can cure the deficiencies 14 identified in both Report and Recommendations (ECF Nos. 11 and 16), Plaintiff may file a second 15 amended complaint within 14 days of this Order. Failure to file an amended complaint or the 16 filing of an amended complaint containing the same deficiencies as the prior two complaints will 17 result in this action being dismissed with prejudice. 18 DATED this 16th day of August, 2022. 19 ______________________________________ Cristina D. Silva 20 United States District Judge 21

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