Gomez v. Aberasturi ( 2024 )

1 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3 4 Nathan Gomez, Case No. 2:24-cv-01158-CDS-DJA 5 Plaintiff Order Adopting Magistrate Judge’s Report and Recommendation, Denying Plaintiff’s 6 v. Application to Proceed in Forma Pauperis, and Closing Case 7 Leon A. Aberasturi, et al., 8 Defendants [ECF Nos. 1, 3] 9 10 Plaintiff Nathan Gomez brings this civil-rights action seeking to redress constitutional 11 violations he allegedly suffered by being sentenced by Judge Leon A. Aberasturi of the Third 12 Judicial District Court. Compl., ECF No. 1-1. Gomez applied to proceed in forma pauperis (IFP). 13 Therefore his complaint was screened by Magistrate Judge Daniel J. Albgrets, who entered a 14 report and recommendation (R&R) on July 12, 2024. R&R, ECF No. 3. Judge Albgrets 15 recommends that I dismiss Gomez’s complaint without leave to amend, and thus recommends 16 denying the IFP application as moot. Id. 17 The R&R was served on Gomez by mail and through distribution by the law library, but 18 on July 22, 2024, the mail was returned as undeliverable. ECF Nos. 3, 4. The following day, Judge 19 Albregts ordered Gomez to update his address. Order, ECF No. 5. Another copy of the R&R was 20 mailed to Gomez at two separate addresses (id. at 2) and sent for distribution by the law library. 21 See docket at ECF No. 5. It is unclear whether Gomez received the R&R or the order from the law 22 library; however, Gomez has not updated his address. 23 Gomez had until July 26, 2024, to file any objections to the R&R. ECF No. 3 at 5; LR IB 24 3-2(a) (stating that parties wishing to object to an R&R must file objections within fourteen 25 days). As of the date of this order, Gomez has neither objected to the R&R nor requested more 26 time to do so. “[N]o review is required of a magistrate judge’s report and recommendation unless 1|| objections are filed.” Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003). See also Thomas v. 2 ||Arn, 474 U.S. 140, 150 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). I 3 {nonetheless considered Judge Albregts’ recommendation, his order, and the docket in this matter 4 deciding whether to adopt his findings and recommendations. 5 Gomez brought this lawsuit after Judge Aberasturi ordered him to pay child support 6 || during a child custody case, and then sentenced him during a subsequent criminal case. See ECF 1- 7||1. As the magistrate judge properly concludes, judges functioning in their official capacity have 8 |jabsolute immunity from suit. ECF No. 3 at 4-5 (citing Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 9 (9th Cir. 2004)). Gomez thus cannot prevail in a suit against Judge Aberasturi because of 10 ||absolute immunity. “Although leave to amend should be given freely,” Fed. R. Civ. P. 15(a)(2), “a 11||district court may dismiss without leave where the plaintiff's proposed amendments would fail to 12 |\cure the pleading deficiencies and amendment would be futile.” Shechet v. Kim, 481 F. App’x. 366 13 |] (2012). Here, I find that no amendment can cure the defects in Gomez’s pleading so amendment 14 || would be futile. “If a claim for relief cannot be cured by amendment, it should be dismissed 15 || without affording leave to further amend.” Id. at 366. Accordingly, with no objection filed, I adopt 16 ||the magistrate judge’s R&R in its entirety. 17 Conclusion 18 IT IS THEREFORE ORDERED that Judge Albregts’ report and recommendation [ECF 19 || No. 3] is adopted in full. Gomez’s complaint is dismissed without leave to amend. 20 IT IS FURTHER ORDERED that Gomez’s application to proceed in forma pauperis [ECF 21|| No. 1] is denied as moot. 22 The Clerk of Court is kindly directed to enter judgment accordingly and to close this 23 || case. *\ 24 Dated: August 22, 2024 // 25 ZL 6A Cosina D. Silva 26 ed States District Judge