United States District Court, D. Nevada
ORDER ACCEPTING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE WILLIAM G. COBB
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation of United States
Magistrate Judge William G. Cobb (“R&R”)
relating to pro se Plaintiff’s Amended
Complaint (“FAC”) (ECF No. 6). (ECF No. 9.)
Plaintiff filed an objection (ECF No. 10), which the Court
overrules and accepts and adopts the R&R in full.
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). Where a party
timely objects to a magistrate judge’s report and
recommendation, then 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). Where a party fails
to object, however, the court is not required to conduct
“any review at all . . . of any issue that is not the
subject of an objection.” Thomas v. Arn, 474
U.S. 140, 149 (1985). Indeed, the Ninth Circuit has
recognized that a district court is not required to review a
magistrate judge’s report and recommendation where no
objections have been filed. See United States v.
Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding
the standard of review employed by the district court when
reviewing a report and recommendation to which no objections
were made); see also Schmidt v. Johnstone, 263
F.Supp.2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth
Circuit's decision in Reyna-Tapia as adopting
the view that district courts are not required to review
"any issue that is not the subject of an
objection."). Thus, if there is no objection to a
magistrate judge's recommendation, then the court may
accept the recommendation without review. See, e.g.,
Johnstone, 263 F.Supp.2d at 1226 (accepting, without
review, a magistrate judge's recommendation to which no
objection was filed).
FAC, Plaintiff asserts claims for himself and on behalf of
another individual- Niki Kollias Rasneor ("Niki").
(ECF No. 6.) Judge Cobb recommends dismissing all claims with
prejudice. (ECF No. 9 at 4.) Plaintiff objects, asserting,
among other things, that Judge Cobb and this Court in its
prior order accepting Judge Cobb's R&R concerning his
original complaint (ECF No. 7) misrepresented Plaintiff's
allegations and have improperly applied the applicable
standard under Federal Rule of Civil Procedure 12(b)(6). (See
generally ECF No. 10.) To the extent Plaintiff
disagrees with this Court's prior order accepting the
R&R, Plaintiff filed the FAC before this Court issued its
order, and the Court now considers the FAC in full and
overrules Plaintiff's objections.
Judge Cobb recommends dismissing the claims Plaintiff brings
on behalf of Niki for multiple reasons, including that
Plaintiff is not a licensed attorney and thus cannot assert
claims on behalf of another person. (ECF No. 9 at 3.) This
Court agrees that, as a matter of law, Plaintiff cannot
represent Niki in a lawsuit. See, e.g., Hillygus v.
Doherty, No. 19-15137, 2019 WL 3384896, at *1 (9th Cir.
June 27, 2019) (dismissing appeal as frivolous and noting
"Appellant Roger Hillygus may not represent other
appellants because he is proceeding pro se").
Cobb additionally recommends dismissing Plaintiff's
claims for discrimination and retaliation asserted under the
Americans with Disabilities Act ("ADA") because
Plaintiff fails to assert facts supporting that he was
discriminated or retaliated against "because of"
his disability. (Id. at 4.) Upon reviewing the FAC,
this Court agrees that Plaintiff fails to state a colorable
claim under the ADA.
Rule 12(b)(6), a complaint must contain either direct or
inferential allegations concerning “all the material
elements necessary to sustain recovery under some
viable legal theory.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 562 (2007) (quoting Car
Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106
(7th Cir. 1989) (emphasis in original)). To state a claim
under Title II of the ADA for disability discrimination a
plaintiff must allege facts showing that: 1) he is a
“qualified individual with a disability”; (2) he
was either excluded from participation in or denied the
benefits of a public entity’s services, programs or
activities, or was otherwise discriminated against by the
public entity; and (3) such exclusion, denial of benefits, or
discrimination was by reason of his disability. 42 U.S.C.
§ 12132. A disability within the meaning of the statute
is a “physical or mental impairment that substantially
limits one or more of the major life activities of such
individual.” 42 U.S.C. § 12102.
Plaintiff asserts that he has mental disabilities, but fails
to allege facts connecting purported acts of
discrimination with his disability-i.e., that he was
discriminated against by reason of his disability. At most,
Plaintiff asserts that Defendant Ernst and others unknown to
him have knowledge of his disability and separately
discriminated against him. (ECF No. 10 at 6–9.)
Plaintiff thus fails to state a claim which may entitle him
to relief under the ADA. Accordingly, the Court adopts Judge
Cobb’s recommendation that Plaintiff’s claims be
dismissed with prejudice.
Court further recognizes that Plaintiff has moved to have
another judicial officer-aside from this judge or Judge
Cobb-review this case. (ECF No. 11.) While Plaintiff may
disagree with the rulings in his case, the appropriate
recourse for Plaintiff is to appeal this Court’s
decision. Disagreeing with a judge’s decision is not a
proper basis to seek the judge’s recusal. The Court
therefore denies this motion.
therefore ordered, adjudged and decreed that the Report and
Recommendation of Magistrate Judge William G. Cobb (ECF No.
9) is accepted and adopted in its entirety. The Court
overrules Plaintiffs objections.
further ordered that the Amended Complaint (ECF No. 6) is
dismissed with prejudice.
further ordered that Plaintiffs motion for a different judge
(ECF No. 11) is denied.
further ordered that Plaintiffs motion for appointment of