United States District Court, D. Nevada
JONATHAN W. MUNDO, Plaintiff,
NELL CHRISTENSEN, et al., Defendants.
ORDER ACCEPTING AND MODIFYING REPORT AND
RECOMMENDATION (ECF NO. 6)
P. GORDON UNITED STATES DISTRICT JUDGE.
Jonathan Mundo sues two state prosecutors and two state
judges related to their participation in criminal proceedings
against him in Nevada state court. ECF No. 1-1. Mundo asserts
that the defendants violated the Interstate Agreement on
Detainers Act by (1) indicting him when the original detainer
was based on a criminal complaint; (2) adding a robbery
charge that was not in the original criminal complaint; and
(3) filing new detainers after he pleaded guilty and was
sentenced. Id.; see also Nev. Rev. Stat.
§ 178.620. Mundo states in his complaint that he has
appealed the denial of his motion to vacate his sentence. ECF
No. 1-1 at 11. Mundo also alleges he filed a post-conviction
petition for a writ of habeas corpus in March 2016.
Id. at 12.
6, 2016, Magistrate Judge Koppe entered a report and
recommendation recommending that I dismiss Mundo's claims
because Mundo's complaint attempts to collaterally attack
his prior conviction which has not been resolved in his
favor. ECF No. 6. Judge Koppe also noted that any claims
against the prosecutors and judges would be barred by
absolute immunity. Id.
objects, arguing that he is attacking the detainers, not his
underlying conviction. He also argues that absolute immunity
does not completely bar his claims because he seeks
extent Mundo seeks relief from his conviction and sentence
based on alleged violations of the Detainer Act which he
contends should have resulted in dismissal of the criminal
charges against him, those claims would be barred by Heck
v. Humphrey, 512 U.S. 477 (1994). Success on the merits
would necessarily imply the invalidity of his conviction and
sentence and he has not shown the criminal proceedings have
been resolved in his favor. See Smith v. City of
Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (en banc);
Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir.
1997) (“Heck precludes a prisoner's §
1983 claim that, if successful, would invalidate a conviction
or sentence where that conviction [or sentence] has not been
reversed, expunged or called into question by issuance of a
writ of habeas corpus.”) (quotation omitted).
extent Mundo seeks damages against the prosecutors and judges
for their actions taken in his criminal prosecution, those
claims are barred by absolute prosecutorial and judicial
immunity. See Torres v. Goddard, 793 F.3d 1046, 1051
(9th Cir. 2015); Burton v. Infinity Capital Mgmt.,
753 F.3d 954, 960 (9th Cir. 2014).
Mundo's request for injunctive relief related to ongoing
criminal proceedings is barred by Younger abstention
because “absent extraordinary circumstances, a federal
court may not interfere with a pending state criminal
prosecution.” Potrero Hills Landfill, Inc. v. Cty.
of Solano, 657 F.3d 876, 882 (9th Cir. 2011); see
also Younger v. Harris, 401 U.S. 37 (1971). Mundo
alleges he has appealed the denial of his motion to vacate,
he has filed a motion for post-conviction relief, and new
detainers are pending. He does not allege these proceedings
have concluded and thus it appears there are ongoing state
court criminal proceedings. There is no basis to conclude
that Mundo will not have a full and fair opportunity to raise
his federal claims in the state court proceedings. Indeed, by
Mundo's own allegations, the state court previously
dismissed a charge against him based on the Detainers Act.
ECF No. 1-1 at 11. There are no allegations of bad faith,
harassment, or other extraordinary circumstance that would
make abstention inappropriate. Middlesex Cty. Ethics
Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 437
(1982). Accordingly, I dismiss Mundo's claims but without
prejudice to allege facts that would support bad faith,
harassment, or some other extraordinary circumstances that
would make Younger abstention inappropriate.
amending his complaint, Mundo is informed that the court
cannot look to prior pleadings or filings to make his amended
complaint complete. Local Rule 15-1 requires that an amended
complaint be complete in itself without reference to any
prior pleading or filing. Therefore, if there are facts or
evidence which Mundo believes relevant to his claims, he must
put those facts directly in the amended complaint for them to
be considered. Additionally, Mundo cannot lump all of the
defendants together as he has done in his original complaint.
Mundo must set forth facts in his amended complaint showing
what each defendant allegedly did.
THEREFORE ORDERED that Judge Koppe's report and
recommendation (ECF No. 6) is accepted and modified.
Plaintiff Jonathan Mundo's claims for damages against
defendants Nell Christensen, James Miller, Jennifer
Togliatti, and Rodney Burr arising out of actions taken
during his criminal proceedings are dismissed with prejudice.
His claim for injunctive relief is dismissed without
prejudice. Mundo may file an amended complaint on or before
February 9, 2017 if he can cure the ...