Opinion
Case No. 3:19-cv-00751-MMD-CLB
04-02-2020
ZACKERY CRABTREE, Plaintiff, v. SHARON WEHRLY, Defendant.
ORDER
I. SUMMARY
Pro se Plaintiff Zackery Crabtree, currently incarcerated and in the custody of the Nevada Department of Corrections ("NDOC") filed suit under 42 U.S.C. § 1983, alleging a conspiracy to violate NRS § 453.3405 between the district attorney, judge, and county sheriff involved in his criminal case—this case is focused on the county sheriff. (ECF No. 4.) Before the Court is the Report and Recommendation ("R&R" or "Recommendation") of United States Magistrate Carla Baldwin (ECF No. 8), primarily recommending the Court dismiss this case as malicious with prejudice. Plaintiff filed an objection to Judge Baldwin's Recommendation. (ECF No. 9.) As further explained below, the Court will overrule Plaintiff's objection because the Court agrees with Judge Baldwin's analysis, will fully adopt the R&R, and dismiss this case.
Plaintiff has filed four nearly identical cases. The other three are Case Nos. 3:19-cv-00750-MMD-WGC, 3:19-cv-00755-MMD-CLB, and 3:19-cv-00756-MMD-WGC. --------
II. BACKGROUND
As relevant to Plaintiff's objection, Judge Baldwin recommends dismissing this case as malicious, with prejudice, because it is duplicative of Case No. 3:19-cv-00755-MMD-CLB (the "755 Case"). (ECF No. 8 at 4.) She also recommends granting a document that she construed as Plaintiff's application to proceed in forma pauperis (ECF No. 5), and denying another motion Plaintiff filed (ECF No. 3) as moot. (ECF No. 8.) Plaintiff argues in his objection that this case is not duplicative of the 755 Case because this case focuses on Defendant Sheriff Wehrly. (ECF No. 9.)
III. LEGAL STANDARD
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the Court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." Id. Because of Plaintiff's objection to the R&R, the Court has undertaken a de novo review of it, including the other documents filed in this case.
IV. DISCUSSION
Following a de novo review of the R&R and the other records in this case, the Court finds good cause to accept and adopt Judge Baldwin's R&R in full. The Court addresses below Plaintiff's objection.
Plaintiff's objection is meritless. Normally, multiple defendants should be sued in a single case arising out of the same nucleus of operative facts. This case is malicious under 28 U.S.C. § 1915(d)-(e) because, as Judge Baldwin noted as to the 755 Case, and as noted supra at 1 n.1, it is duplicative of three other pending cases Plaintiff filed. (ECF No. 8 at 4.) See also Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (noting "[t]here is no abuse of discretion where a district court dismisses under § 1915(d) a complaint 'that merely repeats pending or previously litigated claims.'") (citation omitted). As this case is malicious, the Court will accept the R&R and dismiss this case with prejudice because amendment would be futile. See id. at 1111 (affirming dismissal with prejudice where amendment would have been futile).
V. CONCLUSION
The Court notes that Plaintiff made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the issues before the Court.
It is therefore ordered that the Report and Recommendation of Magistrate Judge Carla Baldwin (ECF No. 8) is accepted and adopted in full.
It is further ordered that Plaintiff's motion to correct a clerical error (ECF No. 3) is denied as moot.
It is further ordered that the financial certificate Judge Baldwin construed as Plaintiff's IFP application (ECF No. 5) is granted.
It is further ordered that Plaintiff's objection (ECF No. 9) is overruled.
It is further ordered that that this case is dismissed in its entirety, with prejudice.
The Clerk of Court is directed to close this case.
DATED THIS 2nd day of April 2020.
/s/_________
MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE