United States District Court, D. Nevada
M. Navarro, Chief Judge
the Court for consideration are two Report and
Recommendations (“R&R”) of the Honorable
Nancy J. Koppe, United States Magistrate Judge, both entered
on January 9, 2017. (See ECF Nos. 44, 45). Plaintiff
filed Objections to both R&Rs, which are fully briefed.
For the reasons discussed below, the Court
ACCEPTS and ADOPTS the
Complaint asserts various civil rights claims pursuant to 42
U.S.C. § 1983 for alleged constitutional violations
stemming from his arrest, trial, and conviction in Nevada
state court. (See generally Ex. B to Pet. for
Removal (“Compl.”), ECF No. 1-2). Plaintiff
alleges that on September 22, 2010, he was unlawfully
arrested by officers of the Nevada Gaming Control Board while
he was gambling at the Caesars Palace Hotel and Casino
(“Caesars”). (Id. at 2). Plaintiff was
arrested pursuant to NRS § 463.155 for being an
“excluded person.” (Id.). During the
arrest, officers confiscated $768.00 in Caesars gaming chips
and $5, 000.00 in gaming chips from the Orleans Hotel and
Casino (“Orleans”). (Id.). Plaintiff was
thereafter charged with unlawful entry of an excluded person
in violation of NRS § 463.155 and fraudulent acts in a
gaming establishment in violation of NRS § 465.070.3.
See Nevada v. Morris, Case No. C-10-269265-1, Clark
County District Court. The Court discusses additional
pertinent facts below with respect to each R&R.
may file specific written objections to the findings and
recommendations of a United States Magistrate Judge made
pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);
D. Nev. Local R. IB 3-2. Upon the filing of such objections,
the Court must make a de novo determination of those
portions of the Report to which objections are made.
Id. The Court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. Local
R. IB 3-2(b).
relevant here, Plaintiff alleges that Defendant Rachel
Martines (“Martines”) is liable in her individual
and official capacities as an enforcement agent for the
Nevada Gaming Control Board for illegally seizing the $5,
000.00 in Orleans gaming chips. (See Compl. at 6).
On November 9, 2016, Plaintiff filed a Motion for Entry of
Default against Martines, (ECF No. 15), which the Clerk
granted shortly thereafter, (see ECF No.
In the First R&R, Magistrate Judge Koppe recommends that:
(1) the claims against Martines be dismissed; (2) the Motion
to Set Aside Default, (ECF No. 20), filed by Martines be
granted; and (3) Plaintiff's Motion for Default Judgment,
(ECF No. 19), against Martines be denied. (See First
R&R 1:16- 19, ECF No. 44).
Koppe recounts in detail the procedural history of a nearly
identical case filed by Plaintiff, Morris v. The Orleans
Hotel & Casino, Case No. 2:12-cv-01683-JCM-CWH (the
“Orleans case”). In the Orleans
case, United States District Judge James C. Mahan adopted the
recommendation of United States Magistrate Judge Carl W.
Hoffman, agreeing that Plaintiff's claims against
Martines failed under Will v. Mich. Dept. of State
Police, 491 U.S. 58, 71 (1983), and Heck v.
Humphrey, 512 U.S. 477, 483-87 (1994). See Case
No. 2:12-cv-01683-JCM-CWH, Dkt. Nos. 24, 26. Plaintiff
appealed Judge Mahan's ruling, but the Ninth Circuit
found the appeal frivolous and later dismissed the appeal for
Plaintiff's failure to pay the filing fee. See
id., Dkt. Nos. 34, 35. Likewise, Judge Koppe recommends
that “Plaintiff's claims against Defendant Martines
should be dismissed as frivolous” in light of
Morris and Heck. (First R&R 3:17-4:3).
Objection, Plaintiff argues that removal in this case was
improper. (Obj. 5:18-27, ECF No. 51). Further, Plaintiff
asserts that Judge Mahan “had difficulty in his
interpretation of the Heck's [sic] case”
and is therefore “seeking a review of the facts of his
case by Judge Navarro.” (Id. 7:21-24).
Plaintiff argues that “Heck is inapplicable to
the present case because he was never convicted of
cheating at craps regarding the alleged incident at the
Orleans Casino on September 20, 2010.” (Id.
13:5-7). However, Plaintiff was convicted of, inter
alia, four counts of unlawful entry of an excluded
person in a gaming establishment pursuant to a jury verdict
and bench trial. See Nevada v. Morris, Case No.
C-10-269265-1, Clark County District Court. His conviction
was upheld on appeal by the Nevada Supreme Court on April 12,
2012. See Morris v. State of Nev., Nevada Supreme
Court Case No. 58646 (unpublished order). Whether Plaintiff
was convicted of cheating at the Orleans is therefore
irrelevant in light of his unlawful entry convictions.
the Court has determined that Magistrate Judge Koppe's
First R&R should be ACCEPTED and
ADOPTED to the extent that it is not
inconsistent with this opinion. Moreover, in light of
Plaintiff's repeated failed attempts to assert the
instant claims against Martines, the Court dismisses the
claims against Martines with prejudice. See Destfino v.
Reiswig, 630 F.3d 952, 959 (9th Cir. 2011) (“It is
well-established that a court may dismiss an entire complaint
with prejudice where plaintiffs have failed to plead properly
after ‘repeated opportunities.'”).
Judge Koppe's Second R&R recommends that
Plaintiff's Motion seeking to extend time to serve
Defendant Mitchell Caberto be denied and the claims against
him dismissed. (Sec. R&R 1:19-21, ECF No. 45). Magistrate
Judge Koppe points out that although the Federal Rules of
Civil Procedure generally require plaintiffs to effect
service within 90 days after filing a complaint, Plaintiff
has failed to serve Caberto during the more than 180 days
this case was pending in state court. (Id.
1:27-2:11); see also Fed. R. Civ. P. 4(m). Indeed,
although the case was removed to this Court on October 17,
2016, Plaintiff has yet to file notice of proper service as
to Caberto. In addition, Magistrate Judge Koppe determined
that “there is no prejudice” in denying
Plaintiff's Motion as ...