Brooks v. Fender ( 2024 )

1 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3 4 Michael Kirk Thomas Brooks, Case No.: 2:24-cv-01185-CDS-EJY 5 Plaintiff Order Adopting Magistrate Judge’s Report and Recommendation and Closing Case 6 v. 7 Stephen Fender, et al., [ECF No. 5] 8 Defendants 9 10 Magistrate Judge Elayna Youchah recommends that I dismiss plaintiff Michael Brooks’ 11 complaint because defendants1 are either immune from suit or not subject to suit under 12 42 U.S.C. § 1983 or Bivens.2 R&R, ECF No. 5. She further recommends that Brooks’ application to 13 proceed in forma pauperis be denied without prejudice so that Brooks may pursue his claims in 14 state court. Id. at 5. As set forth in the R&R, and in accordance with the local rules, Brooks had 15 until September 9, 2024, to file to file an objection to the R&R. Id. at 6 (citing LR IB 3-2 (stating 16 that parties wishing to object to an R&R must file objections within fourteen days)); see also 28 17 U.S.C. § 636(b)(1)(C) (same). As of the date of this order, Brooks has neither objected to the 18 R&R nor requested more time to do so. 19 “[N]o review is required of a magistrate judge’s report and recommendation unless 20 objections are filed.” Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003); see also Thomas 21 v. Arn, 474 U.S. 140, 150 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). I 22 nonetheless reviewed Judge Youchah’s findings and agree with her conclusion that, based on the 23 1 District Attorney Steve Wolfson; Assistant District Attorneys John T. Jones, Jr., Aaron M. Nance, Joshua 24 Judd, and Cristian Gonzalez; Clark County Public Defender Jennifer A. Smith; Eighth Judicial District Court Judge Kathleen E. Delaney; Mayor Carolyn Goodman; Gregory (sic) Sisolak; United States 25 Attorney Jason M. Frierson; Assistant United States Attorney Stephen Fender; and Federal Public Defenders Heidi Ojeda and Ayden Kebede. 26 2 Bivens actions are identical to civil rights actions under 42 U.S.C. § 1983 except for the replacement of state actor under § 1983 by federal actor under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). allegations contained in the complaint, all named defendants are immune from suit. Pro se 2}| litigants should be given leave to amend unless it is absolutely clear that the defective complaint cannot be cured by amendment. Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995). Here, 4|| amendment would be futile because the defendants are covered by immunity. As a result, and because no objection is filed, I adopt the R@R in its entirety and dismiss the complaint without 6]| prejudice. 7 Conclusion 8 IT IS THEREFORE ORDERED that the magistrate judge’s report and recommendation [ECF No. 5] is adopted. The complaint is now dismissed without prejudice. 10 IT IS FURTHER ORDERED that plaintiff's application to proceed in forma pauperis [ECF No. 4] is denied without prejudice. 12 The Clerk of Court is kindly instructed to close pape 1B Dated: October 8, 2024 f/f 14 f ye 5 Sie States District Judge 16 ( 17 18 19 20 21 22 23 24 25 26