Goodrum v. Overland Hotel and Casino ( 2021 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 MITCHELL KEITH GOODRUM, Case No. 3:20-cv-00542-MMD-WGC 7 Plaintiff, ORDER v. 8 OVERLAND HOTEL AND CASINO, et al., 9 Defendants. 10 11 Pro se Plaintiff Mitchell Keith Goodrum brings this action under 42 U.S.C. § 1983. 12 Before the Court is the Report and Recommendation (“R&R” or “Recommendation”) of 13 United States Magistrate Judge William G. Cobb (ECF No. 4), recommending the Court 14 grant Goodrum’s application to proceed in forma pauperis (ECF No. 3), file Goodrum’s 15 complaint (ECF No. 1-1), dismiss his § 1983 claims with prejudice, and dismiss his state 16 law negligence claim without prejudice so that Goodrum may refile in state court. 17 Goodrum had until April 22, 2021 to file an objection. To date, no objection to the R&R 18 has been filed. For this reason, and as explained below, the Court adopts the R&R, and 19 will grant the application to proceed in forma pauperis, file the Complaint, and dismiss all 20 Goodrum’s claims. 21 The Court “may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 23 fails to object to a magistrate judge’s recommendation, the Court is not required to 24 conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas 25 v. Arn, 474 U.S. 140, 149 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 26 1116 (9th Cir. 2003) (“De novo review of the magistrate judges’ findings and 27 recommendations is required if, but only if, one or both parties file objections to the 28 findings and recommendations.”) (emphasis in original); Fed. R. Civ. P. 72, Advisory 1 Committee Notes (1983) (providing that the Court “need only satisfy itself that there is no 2 clear error on the face of the record in order to accept the recommendation.”). 3 Because there is no objection, the Court need not conduct de novo review, and is 4 satisfied Judge Cobb did not clearly err. Here, Judge Cobb first recommends the Court 5 grant Goodrum’s application to proceed in forma pauperis because Goodrum has 6 demonstrated he cannot pay the initial filing fee. (ECF No. 4 at 3.) Judge Cobb next 7 recommends that Goodrum’s § 1983 claims be dismissed with prejudice as to all 8 defendants because the Overland Hotel and Casino, David Barkley, and Deanna Douglas 9 are not public actors, but were working privately as a business at all times relevant to this 10 case. (Id. at 5.) Because no amendment would cure the fact that Goodrum cannot bring 11 § 1983 claims against these defendants, Judge Cobb recommends dismissing those 12 claims with prejudice and without leave to amend. (Id.) To the extent Goodrum wishes to 13 pursue his negligence theory, Judge Cobb recommends the Court dismiss the state law 14 claim without prejudice so that Goodrum may do so in state court. (Id.) The Court agrees 15 with Judge Cobb. Having reviewed the R&R and the record in this case, the Court will 16 adopt the R&R in full. 17 It is therefore ordered that Judge Cobb’s Report and Recommendation (ECF No. 18 4) is accepted and adopted in full. 19 It is further ordered that Goodrum’s application to proceed in forma pauperis (ECF 20 No. 3) is granted. Goodrum will not be required to pay an initial installment fee. 21 Nevertheless, the full filing fee will still be due, pursuant to 28 U.S.C. § 1915, as amended 22 by the Prison Litigation Reform Act. The movant herein is permitted to maintain this action 23 to conclusion without the necessity of prepayment of fees or costs or the giving of security 24 therefor. 25 It is further ordered that, pursuant to 28 U.S.C. § 1915, as amended by the Prison 26 Litigation Reform Act, the Nevada Department of Corrections will forward payments from 27 the account of Mitchell Goodrum, #1213846, to the Clerk of the United States District 28 Court, District of Nevada, 20% of the preceding month's deposits (in months that the 1 || account exceeds $10.00) until the full $350 filing fee has been paid for this action. The 2 || Clerk of the Court will send a copy of this order to the Finance Division of the Clerk’s 3 || Office. The Clerk will send a copy of this order to the attention of Chief of Inmate Services 4 || for the Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702. 5 It is further ordered that, even if this action is dismissed, the full filing fee still will 6 || be due pursuant to 28 U.S.C. §1915, as amended by the Prison Litigation Reform Act. 7 The Clerk of Court is directed to file the complaint (ECF No. 1-1). 8 It is further ordered that Goodrum’s § 1983 claims are dismissed with prejudice 9 || and without leave to amend. 10 It is further ordered that Goodrum’s negligence claim is dismissed without 11 || prejudice so that he may raise the claim in state court. 12 The Clerk of Court is directed to enter judgment accordingly and close this case. 13 DATED THIS 3% Day of May 2021. 14 15 {Shr 16 MIRANDA 17 CHIEF UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28