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Gibson v. C/O Flores

United States District Court, D. Nevada

January 15, 2020

CRAIG OTIS GIBSON, Plaintiff,
v.
C/O FLORES, et al., Defendants.

          ORDER

          MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Pro se Plaintiff Craig Otis Gibson, currently incarcerated and in the custody of the Nevada Department of Corrections (“NDOC”), alleges violations of his constitutional rights under 42 U.S.C. § 1983 against correctional facility employees and officials generally arising from his contention that he was sexually assaulted, his report of the assault was improperly handled, and his grievance and litigation efforts stemming from the assault were improperly stymied. (ECF No. 5.) Before the Court is the Report and Recommendation (“R&R” or “Recommendation”) of United States Magistrate Judge William G. Cobb (ECF No. 51), recommending that the Court grant Plaintiff's motion to amend (ECF No. 26), allowing some of Plaintiff's proposed counts to proceed against specified defendants, but dismissing some of his proposed claims as futile. Plaintiff filed an objection to Judge Cobb's Recommendation (“RR Objection”).[1] (ECF No. 65.) Also before the Court is Plaintiff's objection to Judge Cobb's decision to grant an extension of time to Defendants to file an answer in a minute order (“MO Objection”). (ECF No. 61 (objecting to ECF No. 49).) As further explained below, the Court will overrule Plaintiff's RR Objection because the Court agrees with Judge Cobb's analysis of the underlying motion to amend, and will fully adopt the R&R. The Court will also overrule Plaintiff's MO Objection because the Court does not find Judge Cobb clearly erred in granting Defendants an extension of time.

         II. BACKGROUND

         The Court incorporates by reference Judge Cobb's recitation of the factual background of this case included throughout the R&R (ECF No. 51), and does not recite it here.

         III. RR OBJECTION

         A. Legal Standard

         This 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.” Id. Because of Plaintiff's RR Objection, the Court has undertaken a de novo review of the R&R.

         B. Discussion

         Judge Cobb primarily recommends the Court grant Plaintiff's motion to amend. (ECF No. 51.) Fed.R.Civ.P. 15 (“Rule 15”) allows amendment only by leave of the court once responsive pleadings have been filed and in the absence of the adverse party's written consent. See Fed. R. Civ. P. 15(a). The Court has discretion to grant leave and should freely do so when justice so requires. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (quoting Fed.R.Civ.P. 15(a)). “In exercising its discretion, ‘a court must be guided by the underlying purpose of Rule 15-to facilitate a decision on the merits rather than on the pleadings or technicalities.'” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). Nonetheless, the Court may deny leave to amend if: (1) it will cause undue delay; (2) it will cause undue prejudice to the opposing party; (3) the request is made in bad faith; (4) the party has repeatedly failed to cure deficiencies; or (5) the amendment would be futile. See Leadsinger, Inc. v. BMG Music Publ=g, 512 F.3d 522, 532 (9th Cir. 2008).

         Judge Cobb applied the correct legal standards in recommending the Court grant Plaintiff's motion to amend, but also screening the claims in Plaintiff's proposed amended complaint-and the Court agrees with Judge Cobb as to the claims he recommends the Court dismiss. (ECF No. 51 at 2-15.) The Court addresses below Plaintiff's objection.

         Plaintiff primarily objects to Judge Cobb's Recommendation to dismiss some of his claims as futile, and argues Judge Cobb erred in recommending their dismissal because pleadings filed by pro se litigants are held to less stringent standards than those drafted by lawyers. (ECF No. 65 at 1-2.) Defendants counter that Judge Cobb did not err in recommending the dismissal of some of Plaintiff's claims, addressing the merits of his findings as to each claim and agreeing with Judge Cobb. (ECF No. 68 at 3-4.) The Court agrees with Defendants.

         While Plaintiff repeatedly refers to a correct legal principle-that pro se pleadings must be liberally construed-in his RR Objection, he fails to explain, much less demonstrate, how Judge Cobb erred in recommending the dismissal of some of Plaintiff's claims. (ECF No. 65 at 1-2.) He merely repeats the principle without applying it to Judge Cobb's findings, or pointing to any factual allegations that may save the claims Judge Cobb recommends the Court dismiss. (Id.) Further, the principle that Courts must liberally construe pro se claims does not mean that the Court must allow all of Plaintiff's claims to proceed. In fact, the Prison Litigation Reform Act (“PLRA”) requires that the Court dismiss portions of Plaintiff's complaint that fail to state a claim. See 28 U.S.C. § 1915A(b)(1). And that is what Judge Cobb has done here. Said otherwise, he has done nothing more than recommend the dismissal of certain claims that lack necessary factual allegations as required by the PLRA.[2] (ECF No. 51 at 4-13.) In addition, the Court may properly deny leave to amend, where, as here, amendment would be futile. See Leadsinger, 512 F.3d at 532.

         In sum, the Court will adopt Judge Cobb's Recommendations because the Court agrees with them, and will ...


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