Turner v. Taboonsf Inc. ( 2024 )

1 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3 4 Terrence Turner, Case No. 2:24-cv-00837-CDS-EJY 5 Plaintiff Order Adopting Magistrate Judge’s Report and Recommendation 6 v. 7 TaboonSF Inc., et al., [ECF No. 6] 8 Defendants 9 10 Plaintiff Terrence Turner initiated this action by filing an application to proceed in forma 11 pauperis (IFP) alongside his complaint. See generally ECF No. 1. Magistrate Judge Elayna Youchah 12 reviewed Turner’s complaint and issued an order and report and recommendation (R&R) 13 granting Turner’s IFP application, but dismissing his claims against TaboonSF Inc., Hummus 14 Bodega, Din Lieb, and Issac Yosef without prejudice for failure to establish general or specific 15 personal jurisdiction of these defendants. Order, ECF No. 6. Judge Youchah recommends that I 16 dismiss Turner’s claims against the Food and Drug Administration (FDA), the U.S. Department 17 of Labor, the Internal Revenue Service (IRS), and the Occupational Safety and Health 18 Administration (OSHA) with prejudice as these agencies are immune from suit. Id. at n.1. 19 Turner had until May 20, 2024 to file any objections to the R&R. 28 U.S.C. § 636(b)(1); 20 LR IB 3-2(a) (stating that parties wishing to object to an R&R must file objections within 21 fourteen days). As of the date of this order, no objection has been filed and the deadline to do so 22 has passed. The Ninth Circuit has recognized that a district court is not required to review a 23 magistrate judge’s R&R where no objections have been filed. United States v. Reyna-Tapia, 328 F.3d 24 1114, 1121 (9th Cir. 2003). While review is not required because Turner does not object to the 25 R&R, I nonetheless conduct one here and agree with Judge Youchah’s findings. 26 1 The FDA, IRS, OSHA, and U.S. Department of Labor are barred by federal sovereign immunity and thus fail as a matter of law. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (sovereign immunity protects the United States, as well as its agencies, officers, and 4] employees from actions for money damages, unless there has been an express waiver of 5]immunity and consent to suit). Any waiver of sovereign immunity must be unequivocally expressed. Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 1982). And Turner, as the party 7|| suing the federal government, “bears the burden of pointing to such an unequivocal waiver of 8|| immunity.” See Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir.1983). “Such a waiver cannot be 9} implied but must be unequivocally expressed.” See United States v. King, 395 U.S. 1, 4 (1969). Here, after reviewing Turner’s complaint, I find that it does not point to a waiver of sovereign 11] immunity. Thus, I adopt Judge Youchah’s recommendation in full. 12 Conclusion 13 IT IS THEREFORE ORDERED that the report and recommendation [ECF No. 6] is ADOPTED. Defendants FDA, IRS, OSHA, and U.S. Department of Labor are dismissed with 15]| prejudice. 16 If Turner chooses to file an amended complaint that complies with Judge Youchah’s order, he must do so no later than June 6, 2024. Failure to do so will result in dismissal of this 18]| case. 19 Turner is reminded that the amended complaint must be labeled “FIRST AMENDED COMPLAINT?” and must include all facts and claims on which he seeks to proceed even if the 21) same claim is in the current complaint because a newly filed first amended complaint will replace the current complaint in its entirety. The proposed first amended complaint must be 23} complete in and of itself as nothing in the original complaint yl be considered by the court. 24 Dated: May 22, 2024 LZ 25 Ly _—— 46 istina D. Silva . Jnited States District Judge