Skinner v. Reed

Opinion

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 RODERICK SKINNER, Case No. 3:23-cv-00098-MMD-CSD 7 Plaintiff, ORDER v. 8 EDWARD T. REED, et al., 9 Defendants. 10 11 Pro se Plaintiff Roderick Skinner, who is incarcerated at Northern Nevada 12 Correctional Center, brings this action against Defendants Edward T. Reed, Esq. and 13 Edward T. Reed, PLLC under 42 U.S.C. § 1983. Before the Court is United States 14 Magistrate Judge Craig S. Denney’s Report and Recommendation (“R&R”) (ECF No. 15), 15 recommending that the Court deny as moot Skinner’s second application for in forma 16 pauperis (“IFP”) status (ECF No. 14) and dismiss his amended complaint (ECF No. 12 17 (“FAC”)) with prejudice. Skinner timely filed an objection (ECF No. 16 (“Objection”)) to the 18 R&R. Skinner also submitted a motion to stay these proceedings for 90 days. (ECF No. 19 17.) As further explained below, the Court overrules Skinner’s Objection and adopts the 20 R&R but dismisses Skinner’s Complaint without prejudice, and grants Skinner’s motion 21 to stay. 22 I. REPORT AND RECOMMENDATION 23 This Court “may accept, reject, or modify, in whole or in part, the findings or 24 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 25 timely objects to a magistrate judge’s R&R, the Court is required to “make a de novo 26 determination of those portions of the R&R to which objection is made.” Id. The Court’s 27 review is thus de novo because Skinner filed his Objection. (ECF No. 16.) 28 In his Objection, Skinner first cited the Supreme Court’s opinion in Tower v. Glover 2 U.S. 914 (1984). The opinion in Tower reached the limited holding that “public defenders 3 are not immune from liability in actions brought by a criminal defendant against state 4 public defenders who are alleged to have conspired with state officials to deprive the § 5 1983 plaintiff of federal constitutional rights.” 467 U.S. at 916. The conspiracy at issue 6 was central to this holding. See id. at 920. But Skinner has not alleged facts to suggest 7 such a conspiracy; he merely alleges that Defendants knowingly or negligently failed to 8 compel Dennis Carry to appear at his habeas hearing. (ECF No. 12 at 2-4.) See also 9 Stringer v. Woolsey, No. 2:10-CV-00048-KJD, 2010 WL 2776788, at *5 n.1 (D. Nev. July 10 13, 2010). Accordingly, Skinner has not cured the deficiency in his original Section 1983 11 claim, and the Court adopts Judge Denney’s recommendation to dismiss the claim, 12 though the Court will dismiss without prejudice and with leave to amend. 13 Skinner then goes on to assert that, if he cannot bring a Section 1983 claim, he 14 has adequately raised claims for relief under 42 U.S.C. § 1985 and 42 U.S.C. § 1986. 15 (ECF No. 16 at 3.) Section 1985 prohibits engaging in a conspiracy to obstruct justice in 16 court proceedings or deprive others of their rights and privileges. See 42 U.S.C. § 1985. 17 But, again, Skinner did not allege any conspiracy to deprive him of his rights or obstruct 18 justice in his habeas proceeding in his FAC. (ECF No. 12 at 2-4.) He merely claimed that 19 his attorney, alone, provided ineffective assistance. (Id.) Section 1985 therefore cannot 20 provide a basis for relief given the allegations Skinner has made. 21 Nor can Section 1986 provide Skinner a basis for relief given that he has not 22 alleged any conspiracy. See 42 U.S.C. § 1986 (creating cause of action against persons 23 who knowingly or negligently failed to prevent conspiracies discussed in Section 1985). 24 As to the remaining portions of the R&R to which Skinner did not object, the Court 25 adopts them because Judge Denney did not clearly err. See United States v. Reyna- 26 Tapia, 328 F.3d 1114, 1116 (9th Cir. 2003). 27 The Court largely agrees with Judge Denney and finds that Skinner’s FAC must 28 be dismissed. However, dismissal with prejudice is not appropriate unless it is “clear” that 2 Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). The FAC is dismissed without prejudice and 3 Skinner is granted leave to amend his complaint once more so that he may cure the 4 deficiencies identified here. See also FED. R. CIV. P. 15(a) (“The court should freely give 5 leave [to amend] when justice so requires.”). 6 II. MOTION TO STAY 7 Skinner also moves to stay these proceedings for 90 days, as he is being paroled 8 to Immigrations and Customs Enforcement for deportation to Australia. (ECF No. 17.) A 9 district court has “broad discretion to stay proceedings as an incident to its power to 10 control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997). “The proponent of a 11 stay bears the burden of establishing its need.” Id. at 708. Skinner has met this burden 12 by establishing the necessity of the stay. The Court has granted Skinner leave to amend 13 his FAC, and plaintiffs are typically given 30 days to do so. Skinner will be undergoing 14 deportation during that time period, and it would be unfair to allow for proceedings to 15 continue while Skinner cannot adequately respond. (ECF No. 17 at 2 (noting Skinner’s 16 deportation processes began April 8, 2024).) As the “interests of justice seem to require” 17 staying these proceedings, the motion for a 90-day stay is granted. Sec. & Exch. Comm’n 18 v. Dresser Indus., Inc., 628 F.2d 1368, 1375 (D.C. Cir. 1980) (parentheses omitted). 19 III. CONCLUSION 20 It is therefore ordered that Skinner’s objection (ECF No. 16) to Judge Denney’s 21 Report and Recommendation (ECF No. 15) is overruled. 22 It is further ordered that Judge Denney’s Report and Recommendation (ECF No. 23 15) is adopted, but the amended complaint is dismissed without prejudice. 24 It is further ordered that the Complaint is dismissed, in its entirety, without 25 prejudice. 26 It is further ordered that Skinner’s second IFP application (ECF No. 14) is denied 27 as moot because Skinner was previously granted IFP status. 28 It is further ordered that Skinner’s motion to stay (ECF No. 17) is granted. The stay 1 || will be lifted in 90 days on June 9, 2024. 2 It is further ordered that, if Skinner wishes to file a second amended complaint, he 3 || must do so by June 10, 2024. If Skinner does not file a second amended complaint 4 || alleging cognizable claims by June 10, 2024, the Court will dismiss this case with 5 || prejudice. 6 The Clerk of Court is directed to update Skinner's e-filing address. E-filings should 7 || be sent to robyn@welliner.com.au and renniks_O02@hotmail.com. Mailed filings for 8 || Skinner may be sent to Wellners Lawyers, P.O. Box 2012, Tingalpa, QLD 4173, Australia. 9 DATED THIS 10 Day of April 2024.

11 MIRANDA M. DU 12 CHIEF UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28