Love v. State of Nevada

• Court: District Court, D. Nevada
• Decided: February 26, 2021
• Docket: 2:20-cv-02095
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 WILSON EARL LOVE, Case No. 2:20-cv-02095-KJD-EJY

8 Plaintiff, ORDER ADOPTING AND AFFIRMING MAGISTRATE JUDGE’S REPORT AND 9 v. RECOMMENDATION

10 THE STATE OF NEVADA,

11 Defendant.

12 Before the Court for consideration is the Report and Recommendation (ECF #3) 13 containing the findings and recommendations of Magistrate Judge Elayna J. Youchah entered 14 November 16, 2020, recommending that Plaintiff’s action be dismissed with prejudice. Plaintiff 15 filed an objection to the report. (ECF #4). 16 The Court has conducted a de novo review of the record in this case in accordance with 17 28 U.S.C. § 636(b)(1) and LR IB 3-2. The Court determines that the Report and 18 Recommendation (ECF #3) containing the findings and recommendations of Magistrate Judge 19 Youchah, entered November 16, 2020, should be ADOPTED and AFFIRMED in part. In 20 addition to the magistrate judge’s reasoning, Plaintiff’s proposed amended complaint has not 21 alleged that his conviction was reversed, expunged, declared invalid or called into question by 22 issuance of a writ of habeas corpus, as required before his desired remedy may be awarded. Heck 23 v. Humphrey, 512 U.S. 477, 486–87 (1994). As such, dismissal with prejudice is appropriate 24 regarding the claims against the state of Nevada. Plaintiff’s amended complaint names the Las 25 Vegas Metropolitan Police Department as a party. However, to state a claim under § 1983, which 26 Plaintiff appears to be doing, he must plausibly allege that he “suffered the deprivation of a 27 federally protected right and that the alleged deprivation was committed by a person acting under 28 color of state law.” Sampson v. Cnty. of Los Angeles by and through Los Angeles Cnty. Dep’t. 1 of Children and Family Services, 974 F.3d 1012, 1018 (9th Cir. 2020) (internal quotations 2 omitted). If Plaintiff can name individuals who deprived him of his rights and satisfy the Heck 3 requirements, amendment may not be futile. As such, Plaintiff’s Motion to Amend (ECF #5) is 4 denied without prejudice. 5 IT IS THEREFORE ORDERED that the Magistrate Judge’s Report and 6 Recommendation (ECF #3) is ADOPTED and AFFIRMED in part and the action is dismissed 7 with prejudice regarding the claims against the State of Nevada. The other claims are dismissed 8 without prejudice as amendment may not be futile. 9 IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend (ECF #5) is DENIED. 10 IT IS FINALLY ORDERED that Plaintiff shall have thirty days to file an amended 11 complaint that meets the requirements above. Failure to comply may lead to dismissal of 12 Plaintiff’s complaint with prejudice. 13 Dated this 26th day of February, 2021. 14 _____________________________ 15 Kent J. Dawson 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28