Sharkey v. Las Vegas Metro Police Department (LVMPD)

• Court: District Court, D. Nevada
• Decided: June 13, 2025
• Docket: 2:24-cv-01093
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 James Sharkey, Case No.: 2:24-cv-01093-JAD-NJK

4 Plaintiff v. Order Overruling Objection, Adopting 5 Report and Recommendation, and Denying Las Vegas Metro Police Department, et al., as Moot Motion to Proceed 6 in Forma Pauperis Defendants 7 [ECF Nos. 1, 12]

8 Pro se plaintiff James Sharkey filed a civil-rights suit against the Las Vegas Metro Police 9 Department (“Metro”) and Metro Sergeant Justin Duke, alleging that they violated his 10 Fourteenth Amendment rights by threatening him with a baseless arrest to keep him off the Las 11 Vegas Strip.1 The assigned judge, U.S. District Judge Cristina D. Silva, rejected Sharkey’s 12 efforts to amend his complaint because the deadline for amendment had passed and he didn’t 13 meet the standard for reopening the deadline.2 So Sharkey filed his rejected amended complaint 14 as a new case—this one—and moved to consolidate it into the earlier-filed one.3 Judge Silva 15 denied that consolidation motion.4 16 Because a plaintiff may not maintain more than one case about a single nucleus of facts, I 17 ordered Sharkey to show cause why this case should not be dismissed as improperly 18 commenced.5 Having reviewed Sharkey’s response, the magistrate judge recommends that this 19 20

21 1 Sharkey v. Duke, 2:23-cv-449-CDS-DJA. 2 See ECF Nos. 41 and 91 in 2:23-cv-499-CDS-DJA. 22 3 ECF No. 1-1. 23 4 ECF No. 57 in 2:23-cv-499-CDS-DJA. 5 ECF No. 6. 1 second-filed case be dismissed as an improper attempt to evade Judge Silva’s rulings.6 Sharkey 2 objects that the instant case is broader than the one before Judge Silva and that initiating a 3 second case was necessary to preserve his rights.7 4 Discussion

5 The Ninth Circuit has made it clear that “[p]laintiffs generally have no right to maintain 6 two separate actions involving the same subject matter at the same time in the same court against 7 the same defendant.”8 The reason for this rule was well explained in Professional Management 8 Associates v. KPMG, LLP: 9 The denial of a motion to amend a complaint in one action is a final judgment on the merits barring the same complaint in a later 10 action. . . . This is so even when denial of leave to amend is based on reasons other than the merits, such as timeliness. . . . Thus, the 11 denial of leave to amend in [the first lawsuit] bars the filing of the same pleading in this [second] lawsuit.9 12 13 Sharkey’s complaint in this case is the very same one rejected by Judge Silva—it even 14 bears the file stamp from that case.10 While he’s added a few handwritten annotations here and 15 there, it’s materially the same pleading. He squarely acknowledges in his response to the order 16 to show cause that he filed his amended complaint in this second case to “seek justice after [his] 17 18 19 20

21 6 ECF No. 12. 7 ECF No. 14. 22 8 Mendoza v. Amalgamated Transit Union Int’l, 30 F.4th 879, 886 (9th Cir. 2022) (cleaned up). 23 9 Prof’l Mgmt. Assoc. v. KPMG, LLP, 345 F.3d 1030, 1032 (8th Cir. 2003). 10 Compare ECF No. 1-1 with ECF No. 32, pp. 6–15 in 2:23-cv-499-CDS-DJA. 1 motion to amend was denied.”11 Swierkiewicz v. Sorema, which he cites for that notion, fails to 2 support it in any way.12 3 Sharkey’s argument that he needed to file his amended complaint as a new action to 4 “preserve [his] claims under the statute of limitations”13 and “prevent unjust procedural

5 dismissals”14 is unsound. The cases he relies on for this proposition— American Pipe & 6 Construction Company v. Utah and Crown, Cork & Seal Company v. Parker15—are far too 7 procedurally distinguishable to support it. His avenue to pursue his right to expand his original 8 suit to include these allegations and additional defendants is appeal, not refiling the rejected 9 amended complaint as a new action. Sharkey filed that appeal—and it remains pending.16 10 Finally, Sharkey alternatively asks this court to consolidate this case with his earlier-filed 11 one.17 But this court’s local rule 42-1(b) vests the decision to consolidate exclusively in “the 12 judge to whom the earliest-filed action is assigned.”18 Here, that’s Judge Silva. Because she 13 14

11 ECF No. 7 at 2. 15 12 Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002) (holding that an employment- 16 discrimination complaint need not contain specific facts establishing a prima facie case under the McDonnell Douglas framework, but instead must merely satisfy Fed. R. Civ. P. 8(a)). 17 13 Id. 18 14 ECF No. 14 at 2 15 See id. at 2 (citing Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 540 (1974) (“This case 19 involves an aspect of the relationship between a statute of limitations and the provisions of Fed. 20 Rule Civ. Proc. 23 regulating class actions in the federal courts.”); Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983) (running of 90–day statutory period within which plaintiff was 21 required to commence his Title VII suit was tolled during the period that there was pending a class action in which he was a putative class member)). 22 16 Ninth Circuit Case No. 24-7801. 23 17 ECF No. 14 at 3. 18 L.R. 42-1(b). already denied Sharkey’s consolidation request, this relief is not available through the instant case. 3 The Ninth Circuit recognized in Adams v. California Department of Health Services that 4! “the fact that [a] plaintiff was denied leave to amend does not give h[im] the right to file a second lawsuit based on the same facts.””? And when he does, the court has the discretion to 6|| dismiss the second-filed action.?! Because Sharkey has not demonstrated that his initiation of this action by filing his rejected amended complaint was proper, I adopt the magistrate judge’s 8|| recommendation to dismiss this second-filed case. 9 Conclusion 10 IT IS THEREFORE ORDERED that the magistrate judge’s report and recommendation 11]|to dismiss this lawsuit as duplicative [ECF No. 12] is ADOPTED in its entirety, Sharkey’s objection [ECF No. 14] is OVERRULED, and his motion to proceed in forma pauperis [ECF No. 1] is DENIED as moot. This case is DISMISSED, and the Clerk of Court is directed to 14] ENTER JUDGMENT accordingly and CLOSE THIS CASE. nace U.S. District JudpedenniferA. Dorsey 16 June 13, 2025 17 18 19 20 21); ———____ See ECF No. 57 in 2:23-cv-499-CDS-DJA. 221120 adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007), overruled on other 3 grounds by Taylor v. Sturgell, 553 U.S. 880, 904 (2008) (quoting Hartsel Springs Ranch of CO, Inc. v. Bluegreen Corp., 296 F.3d 982, 989 (10th Cir. 2002)). "1 Td. at 692-93.