Opinion
Case No.: 3:18-CV-00554-RCJ-WGC
04-02-2019
BRIAN BEST, Plaintiff, v. MEREDITH BERESFORD, et al., Defendants.
ORDER ADOPTING AND ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
(ECF NO. 3)
Before the Court is the Report and Recommendation of United States Magistrate Judge (ECF No. 3) entered on February 27, 2019, recommending that the Court grant Plaintiff's Application to Proceed in Forma Pauperis (ECF No. 1); the Complaint (ECF No. 1-1) be filed; and that some claims be dismissed with prejudice while others be dismissed without prejudice and with leave to amend. On March 18, 2019, Plaintiff filed his Objections to Magistrate Judge's Report and Recommendation (ECF Nos. 4 and 5).
Refers to Court's docket number. --------
This action was referred to Magistrate Judge Cobb under 28 U.S.C. § 636(b)(1)(B) and Local Rule IB 1-4 of the Rules of Practice of the United States District Court for the District of Nevada.
The Court has conducted its de novo review in this case, has fully considered the pleadings and memoranda of the parties including the parties' objections to the Report and Recommendation and other relevant matters to 28 U.S.C. § 636(b)(1)(B) and Local Rule IB 3-2.
IT IS HEREBY ORDERED that United States Magistrate Judge Cobb's Report and Recommendation (ECF No. 3), shall be ADOPTED and ACCEPTED.
IT IS FURTHER ORDERED that Plaintiff's IFP application (ECF No.1) is GRANTED.
IT IS FURTHER ORDERED That the Complaint (ECF No. 1-1) shall be filed.
IT IS FURTHER ORDERED that Plaintiff's Fourth Amendment claims against Meredith Beresford are DISMISSED WITH PREJUDICE to the extent they rely on conduct undertaken by Beresford that was intimately associated with the judicial phase of the criminal case. Plaintiff is given LEAVE TO AMEND, however, insofar as he may be able to state Fourth Amendment claims against Beresford for which she does not have absolute immunity. To the extent Plaintiff implicates Judge Tatro in his Fourth Amendment claims he will be DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff's witness tampering claim against Hatley is DISMISSED WITH LEAVE TO AMEND.
IT IS FURTHER ORDERED that the malicious prosecution claims are DISMISSED WITHOUT PREJUDICE as they have not yet accrued. They may be refiled once the conviction is invalidated. To the extent the malicious prosecution claims are asserted against Beresford based on allegations of conduct that was intimately associated with the judicial phase of the criminal process (such as filing the criminal complaint, bringing charges, and negotiating a plea), they will be DISMISSED WITH PREJUDICE as Beresford is entitled to absolute immunity as to those claims.
IT IS FURTHER ORDERED that the libel claim is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the abuse of process claim is DISMISSED, WITH LEAVE TO AMEND.
IT IS FURTHER ORDERED that the perjury claim against Beresford is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff's negligence claim is DISMISSED WITH LEAVE TO AMEND.
IT IS FURTHER ORDERED that Plaintiff may file an AMENDED COMPLAINT within 30 days from entry of this order, or on or before MAY 2, 2019.
IT IS SO ORDERED.
Dated this 2ND day of April, 2019.
/s/_________
ROBERT C. JONES
Senior District Judge