Andersonv.Pastuna

UNITED STATES DISTRICT COURT DISTRICT OF NEVADADec 28, 2018
Case No. 2:18-cv-01276-JAD-GWF (D. Nev. Dec. 28, 2018)

Case No. 2:18-cv-01276-JAD-GWF

12-28-2018

ARNOLD ANDERSON, Plaintiff, v. C. PASTUNA, et al., Defendants.


ORDER AND REPORT AND RECOMMENDATION

This matter comes before the Court on Plaintiff's Application for Leave to Proceed In Forma Pauperis (ECF No. 1), filed on July 12, 2018. Also before the Court is Plaintiff's Motion for Judge to Correct Errors in this Case (ECF No. 3), Motion for Appointment of Counsel (ECF No. 4), filed on September 19, 2018, and Plaintiff's Motion to Extend 120 Day Service (ECF No. 6), filed on October 24, 2018.

On March 17, 2017, Plaintiff filed an Application for Leave to Proceed In Forma Pauperis (ECF No. 1) in another case against all of the same named Defendants. See Anderson v. Patsuna, Case No. 2:17-cv-00808-APG-GWF. On June 25, 2018, the Court granted Application for Leave to Proceed In Forma Pauperis and screened his Complaint pursuant to 28 U.S.C. § 1915A(a). Id. at ECF No. 3. The Court allowed Plaintiff's claim for violation of his Fourth Amendment rights based on a warrantless arrest issued without probable cause to proceed against Defendants Pastuna, Auschwitz, Bryant, and Valenzuela in their individual capacity. Id. The Court recommended that Plaintiff's claims against Defendant District Attorney Binu Palal be dismissed with prejudice due to Plaintiff's failure to state a claim for which relief can be granted. On August 3, 2018, the Court accepted the undersigned's recommendation. See ECF No. 9. Further, the Court dismissed without prejudice Plaintiff's claim against Defendants Pastuna, Auschwitz, Bryant, and Valenzuela, in their official capacity, and granted Plaintiff leave to file an amended complaint correcting noted deficiencies by July 23, 2018.

Defendant District Attorney Binu Palal is not a named Defendant in this matter. --------

This matter was opened on July 12, 2018 when Plaintiff filed another Application for Leave to Proceed In Forma Pauperis with his complaint attached. See ECF No. 1. It appears that Plaintiff intended to file such documents as his Amended Complaint but did not include the required case number, Case No. 2:17-cv-00808-APG-GWF, causing this matter to be opened in error. Plaintiff asserts the same claims against the same Defendants in both matters. Therefore, this matter was erroneously opened. The Court has instructed the Clerk of the Court to file the Complaint filed in this matter (ECF No. 1-1) in Case No. 2:17-cv-00808-APG-GWF as Plaintiff's Amended Complaint to be screened pursuant to 28 U.S.C. § 1915A(a). The Court denies Plaintiff's Motion to Correct Errors (ECF No. 3), Motion for Appointment of Counsel (ECF No. 4), and Motion to Extend 120 Day Service (ECF No. 6) without prejudice to Plaintiff filing such motions in Case No. 2:17-cv-00808-APG-GWF. Additionally, the Court recommends that this matter be dismissed as duplicative. Accordingly,

ORDER

IT IS HEREBY ORDERED that Plaintiff's Motion to Correct Errors (ECF No. 3), Motion for Appointment of Counsel (ECF No. 4), and Motion to Extend 120 Day Service (ECF No. 6) are denied without prejudice to Plaintiff filing such motions in Case No. 2:17-cv-00808-APG-GWF.

RECOMMENDATION

IT IS HEREBY RECOMMENDED that this matter be dismissed as duplicative.

NOTICE

Under Local Rule IB 3-2, any objection to this Finding and Recommendation must be in writing and filed with the Clerk of the Court within fourteen (14) days. Appeals may been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). Failure to file objections within the specified time or failure to properly address and brief the objectionable issues waives the right to appeal the District Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

Dated this 28th day of December, 2018.

/s/_________


GEORGE FOLEY, JR.


UNITED STATES MAGISTRATE JUDGE