Lujan v. Seeger Weiss LLP ( 2021 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 MICHAEL V. LUJAN, Case No. 3:21-cv-00246-MMD-CLB 7 Plaintiff, ORDER v. 8 SEEGER WEISS LLP, et al., 9 Defendants. 10 11 12 Plaintiff Michael V. Lujan brings this action under 42 U.S.C. § 1983. Before the 13 Court is the Report and Recommendation (ECF No. 5 (“R&R” or “Recommendation”)) of 14 United States Magistrate Judge Carla L. Baldwin, concerning Lujan’s application to 15 proceed in forma pauperis (ECF No. 4 (“IFP Application”)), his pro se civil rights complaint 16 (ECF No. 1-1 (“Complaint”)), and his motion for transportation. (ECF No. 1-4.) Lujan filed 17 an objection. (ECF No. 6 (“Objection”).) 18 The Court “may accept, reject, or modify, in whole or in part, the findings or 19 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 20 timely objects to a magistrate judge’s report and recommendation, then the Court is 21 required to “make a de novo determination of those portions of the [report and 22 recommendation] to which objection is made.” Id. Where a party fails to object, however, 23 the Court is not required to conduct “any review at all . . . of any issue that is not the 24 subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also United States 25 v. Reyna-Tapia, 328 F.3d 1114, 1116 (9th Cir. 2003) (“De novo review of the magistrate 26 judges’ findings and recommendations is required if, but only if, one or both parties file 27 objections to the findings and recommendations.”) (emphasis in original); Fed. R. Civ. P. 1 that there is no clear error on the face of the record in order to accept the 2 recommendation.”). 3 Magistrate Judge Baldwin recommends granting Lujan’s IFP Application because 4 Lujan has demonstrated he cannot pay the filing fee. (ECF No. 5 at 2.) The Court agrees. 5 Magistrate Judge Baldwin recommends dismissal of the Complaint primarily 6 because Lujan asserts section 1983 claims—based on vague and conclusory 7 allegations—against two law firms without alleging how these two private parties acted 8 under color of state law. (Id. at 3-4.) Lujan’s Objection offers a synopsis of his state law 9 claims based on breach of contract, negligence, and legal malpractice. (ECF No. 6 at 2- 10 5.) He further asserts that Defendants acted under color of state law. (Id. at 5.) However, 11 asserting claims for violation of state common laws are not enough to satisfy section 12 1983’s requirement that private actors acted under color of state law in violating Lujan’s 13 constitutional rights. See West v. Atkins, 487 U.S. 42, 48-49 (1988) (a plaintiff asserting 14 a claim under section 1983 “must allege the violation of a right secured by the Constitution 15 and the laws of the United States, and must show that the alleged deprivation was 16 committed by a person acting under color of state law.”). For this reason, the Court agrees 17 with Magistrate Judge Baldwin that dismissal of the Complaint with prejudice is warranted 18 as amendment would be futile. 19 It is therefore ordered that the Report and Recommendation of Magistrate Judge 20 Carla L. Baldwin (ECF No. 5) is accepted and adopted in full. 21 It is further order that the IFP Application (ECF No. 4) is granted. 22 It is further ordered that the Clerk of Court file the Complaint. (ECF No. 1-1.) 23 It is further ordered that the Complaint is dismissed with prejudice. 24 It is further ordered that the motion for transportation (ECF No. 1-4) is denied as 25 moot. 26 /// 27 /// 28 1 It is further ordered that the Clerk of Court enter judgment accordingly and close 2 || this case. 3 DATED THIS 18' Day of August 2021. 4 {GQ 5 MIRANDA M.DU 6 CHIEF UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28