United States District Court, D. Nevada
before the court is Magistrate Judge Ferenbach's report
and recommendation (“R&R”). (ECF No. 139).
Pro se plaintiff Will Sitton (“Sitton”)
filed an objection to the R&R (ECF No. 140). Defendants
have not filed a response to plaintiff's objection, and
the time to do so has passed.
before the court is Sitton's motion for leave to file
first amended complaint. (ECF No. 134). Defendants Jaqueline
Bluth, Elissa Luzaich, David Farrara, Wesley Juhl, and Las
Vegas Review Journal (“LVRJ”) filed two separate
responses (ECF Nos. 136, 137), to which Sitton replied (ECF
does not object to the factual presentation in the R&R.
See (ECF No. 140). Therefore, the court adopts the
facts as stated in the R&R and will detail factual and
procedural background in the discussion section of this order
as necessary to explain the court's holding.
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);
LR IB 3-2. Where a party timely objects to a magistrate
judge's report and recommendation, the court is required
to “make a de novo determination of those
portions of the [report and recommendation] to which
objection is made.” 28 U.S.C. § 636(b)(1). The
court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the
to Local Rule IB 3-2(a), a party may object to the report and
recommendation of a magistrate judge within fourteen (14)
days from the date of service of the findings and
recommendations. Similarly, Local Rule 7-2 provides that a
party must file an opposition to a motion within fourteen
(14) days after service of the motion.
R&R, Magistrate Judge Ferenbach recommends that
Sitton's motion for leave to file an amended complaint be
denied. (ECF No. 139). In evaluating the sufficiency of
Sitton's motion and proposed amended complaint
(“PAC”) under the standard set forth in
Johnson v. Buckley, Magistrate Judge Ferenbach notes
that allowing plaintiff to amend his complaint would be
futile. Id. See Johnson v. Buckley, 356 F.3d 1067,
1077 (9th Cir. 2004) (“Five factors are taken into
account to assess the propriety of a motion for leave to
amend: bad faith, undue delay, prejudice to the opposing
party, futility of amendment, and whether the plaintiff has
previously amended the complaint.”).
the R&R states that count four of Sitton's PAC is
futile because it asserts a constitutional defamation claim
against defendants Bluth and Luzaich, the prosecutors in the
criminal case to which Sitton was the defendant, for the
allegedly defamatory statements they made to the LVRJ during
Sitton's trial. (ECF No. 139 at 3-4). As Magistrate Judge
Ferenbach correctly notes, “prosecutors have absolute
immunity from suits based on activities intimately associated
with the judicial phase of the criminal process, ”
which includes statements made during litigation.
Id. at 4 (internal quotations omitted). See
Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976);
Bailey v. City Attorney's Office of N. Las
Vegas, No. 2:13-cv-343-JAD-CWH, 2015 WL 4506179, at *1
(D. Nev. July 23, 2015).
the R&R states that the fifth claim in Sitton's PAC
(a state-law defamation claim) is also futile because the
court's supplemental jurisdiction over that claim depends
on its jurisdiction over the fourth claim of the
(ECF No. 139 at 3). Magistrate Judge Ferenbach reasons that,
because the court would have no choice but to dismiss count
four of Sitton's PAC based on prosecutorial immunity, the
court would also have to dismiss count five for lack of
supplemental jurisdiction. See 28 U.S.C. § 1367
(“[T]he district courts shall have supplemental
jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article
III of the United States Constitution.”). Accordingly,
Magistrate Judge Ferenbach recommends that Sitton's
motion be denied, as allowing these claims to proceed would
“partially” objects to the R&R, arguing that
Magistrate Judge Ferenbach should have considered the
sufficiency of the first three claims of the PAC, rather than
focusing on the futility of claims four and five. (ECF No.
140). However, Sitton's objection fails for two reasons.
the court cannot dissect a proposed amended complaint,
keeping only the claims that are not futile. When the court
grants a motion to amend complaint, the movant's proposed
amended complaint supplants the previous complaint in its
entirety. Therefore, although some of Sitton's proposed
claims may survive a motion to dismiss, the court is unable
to ignore the futility of his fourth and fifth claims.
See Johnson, 356 F.3d at 1077.
the court agrees with Magistrate Judge Ferenbach that
allowing these futile claims to proceed would unduly
prejudice defendants Bluth and Luzaich, as these defendants
have already “successfully litigated motions to dismiss
and a motion for reconsideration, ” and have been
terminated from this action. (ECF No. 139). The court will
not allow Sitton to file an amended complaint that ...