Provino v. Texas Govt ( 2021 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 RALPH M. PROVINO, Case No. 3:21-cv-00427-MMD-CLB 7 Plaintiff, ORDER v. 8 9 TEXAS GOVT, et al., 10 Defendants. 11 12 I. SUMMARY 13 Pro se Plaintiff R. Max Provino brings this action under 42 U.S.C. § 1983 and has 14 filed an application to proceed in forma pauperis. (ECF No. 1-1 (“Complaint”), 3 (“IFP 15 Application”).) Before the Court is a Report and Recommendation (“R&R”) of United 16 States Magistrate Carla L. Baldwin (ECF No. 3), recommending the Court grant Provino’s 17 IFP Application and dismiss the Complaint with prejudice. Provino filed five untimely 18 objections to the R&R.1 (ECF Nos. 8, 9, 10, 11, and 12 (collectively “Objections”).) Provino 19 also filed two motions relating to the continuation of his case.2 20 Because the Court agrees with Judge Baldwin’s screening analysis of Provino’s 21 Complaint and as further explained below, the Court will accept the reasoning in the R&R 22 and will therefore grant Provino’s IFP Application and dismiss the Complaint. However, 23 24 25 1Provino had until October 15, 2021, to file an objection to the R&R. (ECF No. 3.) 26 The Objections were filed November 24, November 30, November 30, December 6, and December 6, respectively. (ECF Nos. 8, 9, 10, 11, and 12.) 27 2The first is styled as “Motion to Continue Case and Trial Against State of Texas, 28 and All Counties within Texas, and Texas State Government.” (ECF No. 6.) The second is “Motion to Have Jurisdiction Over State of Texas, Sovereign of Texas, and All Counties 2 without prejudice, but without leave to amend. 3 II. BACKGROUND 4 The Complaint names “Texas Govt.,” “Abbot,” “Dewburst,” “Church,” and “Suisse,” 5 as the Defendants in this matter. (ECF No. 1-1 at 1.) However, Provino does not include 6 any factual or legal allegations. (Id.) Provino states that his claim is “Premeditated attack 7 2012 on the blind & elderly & disabled. & false entrapment” (id. at 7.), and attaches three 8 pages listing 35 other distinct claims with no factual elaboration (id. at 9-11). 9 Judge Baldwin screened the Complaint and concluded Provino had not made any 10 allegations. (ECF No. 4 at 3.) Moreover, Judge Baldwin reasoned, nothing in the 11 Complaint would give rise to a federal constitutional or statutory right. (Id. at 4.) She 12 concluded that leave to amend was not appropriate because the deficiencies could not 13 be cured by amendment. (Id.) 14 Provino filed five Objections to the R&R. None of the Objections challenged Judge 15 Baldwin’s reasoning, or in any way referred to the conclusions in the R&R. Instead, 16 Provino includes piecemeal arguments and multiple attachments which appear to 17 reference complaints that Provino and one Helen Provino have filed against multiple 18 entities in Texas. In one Objection, Provino argues that the Court may exert jurisdiction 19 over the state of Texas and includes facts about an attorney who has allegedly defrauded 20 Helen Provino but is not a named defendant in this action. (ECF No. 8.) In another 21 Objection, Provino has filled out several summonses for various entities, one of which is 22 a listed defendant, but most of which are not. (ECF No. 10.) 23 III. LEGAL STANDARD 24 The Court “may accept, reject, or modify, in whole or in part, the findings or 25 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 26 fails to object to a magistrate judge’s recommendation, the Court is not required to 27 conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas 28 v. Arn, 474 U.S. 140, 149 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 2 recommendations is required if, but only if, one or both parties file objections to the 3 findings and recommendations.”) (emphasis in original); Fed. R. Civ. P. 72, Advisory 4 Committee Notes (1983) (providing that the Court “need only satisfy itself that there is no 5 clear error on the face of the record in order to accept the recommendation.”). Where a 6 party timely objects to a magistrate judge’s report and recommendation, then the Court 7 is required to “make a de novo determination of those portions of the [report and 8 recommendation] to which objection is made.” Id. 9 IV. DISCUSSION 10 As a preliminary matter, the Court finds that Provino has demonstrated he is 11 unable to pay the filing fee and will therefore grant his IFP Application. (ECF No. 3.) The 12 Court now considers the Complaint. 13 None of Provino’s Objections were timely, so de novo review is not required. But 14 even if the Court did conduct de novo review, in light of the arguments in the Objections 15 the Court would reach the same conclusion as Judge Baldwin. Provino’s Complaint does 16 not comprehensibly allege any plausible claim against any defendant. It is not even clear 17 to the Court precisely what conduct Provino is basing his Complaint upon—the sprawling 18 array of potential incidents, defendants, and types of claims appear to be disconnected. 19 Moreover, most if not all of the complained conduct appears to have taken place in Texas. 20 It is not clear whether the Court would have jurisdiction over any of the defendants, much 21 less any of the potential claims. 22 The Court further agrees with Judge Baldwin that leave to amend would be futile. 23 See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). It is not clear from the 24 Complaint or any of Provino’s later filings that the action could be amended to state a 25 federal claim against a defendant over whom the Court could exercise personal 26 jurisdiction. Moreover, despite the five Objections, none of Provino’s allegations are clear 27 and most are expressly incoherent. However, because it is not clear what allegations 28 1 || Plaintiff appears to be making, the Court will dismiss the Complaint without prejudice, but 2 || without leave to amend. 3 || V. CONCLUSION 4 The Court notes that the parties made several arguments and cited to several 5 || cases not discussed above. The Court has reviewed these arguments and cases and 6 || determines that they do not warrant discussion as they do not affect the outcome of the 7 || issues before the Court. 8 It is therefore ordered that Provino’s objections (ECF Nos. 8, 9, 10, 11, and 12) to 9 || the Report and Recommendation of U.S. Magistrate Judge Carla L. Baldwin are 10 || overruled. The Report and Recommendation (ECF No. 4) is accepted in full. 11 It is further ordered that Provino’s application to proceed in forma pauperis (ECF 12 || No. 3.) is granted. 13 The Clerk of Court is directed to file the complaint (ECF No. 1-1). 14 It is further ordered that the complaint is dismissed without prejudice and without 15 || leave to amend. 16 It is further ordered that the remaining pending motions in this matter (ECF Nos. 17 || 6, 7) are denied as moot. 18 The Clerk of Court is directed to enter judgment accordingly and close this case. 19 || No further documents may be filed in this now closed case. 20 DATED THIS 9" Day of December 2021. 21 23 RENE CBO CHIEF UNITED STATES DISTRICT JUDGE 25 26 27 28