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Tracey L. Brown v. Robert Martinez

May 14, 2013

TRACEY L. BROWN,
PLAINTIFF,
v.
ROBERT MARTINEZ, ET AL., DEFENDANTS.



ORDER

Presently before the court is plaintiff's motion for status check regarding his amended complaint. (Doc. # 26). 36).

Also before the court is the report and recommendation of Magistrate Judge Foley. (Doc. # 37).

Also before the court is plaintiff's motion for leave to file a second amended complaint. (Doc. # 39).

Also before the court is plaintiff's objections pursuant to local rule IB 3-1 or, alternatively, motion for the district judge to reconsider the report and recommendation. (Doc. # 41).*fn1

I. Background

Plaintiff filed the instant lawsuit alleging certain constitutional violations against the Las Vegas Metropolitan Police Department ("LVMPD") and some of its officers. Plaintiff claims that LVMPD officers entered his home on August 15, 2005, without permission and conducted an illegal search of his home.

Plaintiff alleges that officers were looking for a black male that committed a robbery. The officers allegedly knocked on several doors looking for the suspect, but upon learning that white individuals resided at the home the officers did not enter the home. Plaintiff alleges that the when the officers knocked on his door, his 6-year-old son, who is black, opened the door. Plaintiff claims that officers immediately barged inside without permission, probable cause, or a search warrant.

Plaintiff alleges, among other things, that officers used fraudulent and/or illegal evidence found in his home in addition to lying or providing misleading testimony at the his trial to convict him of various state criminal charges. Plaintiff was found guilty at trial in December 2007. In January 2008, plaintiff was sentenced to ten years to life imprisonment. In late 2009, after being incarcerated for close to five years, the Nevada Supreme Court overturned plaintiff's conviction and ruled as a matter of law that plaintiff's constitutional rights were violated.

II. Complaint and Report and Recommendation

Based on the above facts, pro se plaintiff filed an application to proceed in forma pauperis along with filing a complaint alleging certain constitutional violations. The magistrate judge conducted a screening pursuant to 28 U.S.C. § 1915A. The magistrate permitted plaintiff to amend his complaint on two occasions. In the most recent report and recommendation, magistrate judge recommended that the following claims be permitted to proceed forward: (1) illegal search and seizure under the Fourth Amendment; and (2) racial discrimination under the equal protection clause of the Fourteenth Amendment.

Plaintiff did not file objections to the report and recommendation before the deadline date. However, within one month of the deadline for filing the objections, legal counsel appeared on behalf of plaintiff. Counsel, on behalf of plaintiff, filed the motion to file a second amended complaint and the motion to reconsider the report and recommendation.

III. Discussion

Plaintiff, now represented by counsel, seeks relief under two separate federal rules. The court ...


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