United States District Court, D. Nevada
ROY D. MORAGA, Plaintiff,
STEVE WOLFSON, et al., Defendants.
C. MAHAN, UNITED STATES DISTRICT JUDGE
before the court is Magistrate Judge Ferenbach's report
and recommendation (“R&R”). (ECF No. 3).
Pro se plaintiff Roy Moraga filed an objection to
the R&R. (ECF No. 6).
initiated this matter by filing an application for leave to
proceed in forma pauperis, attaching his civil
rights complaint pursuant to 42 U.S.C. § 1983. (ECF No.
1). Magistrate Judge Ferenbach granted plaintiff's
application and screened the complaint pursuant to 28 U.S.C.
§ 1915(e). (ECF No. 3).
is currently housed at Ely State Prison in Nevada. (ECF No.
4). At the conclusion of his criminal trial in state court, a
jury convicted plaintiff of two counts of sexual assault and
two counts of burglary, sentencing him to life without
parole. (ECF No. 4).
asserts that new genetic marker analysis technology will show
that he is innocent of the sexual assault crimes for which
plaintiff was convicted and sentenced. (ECF No. 4). Plaintiff
filed a petition for retesting of the physical evidence used
to convict him based on NRS 176.0918. (ECF No. 4). Pursuant
to NRS 34.726, however, plaintiff's petition was denied
as untimely. (ECF Nos. 3, 4).
exhausting his state and federal habeas petitions, plaintiff
filed the underlying complaint alleging that the Nevada state
court violated his 14th Amendment procedural due process
rights by dismissing his petition for genetic marker analysis
as untimely under NRS 34.726. (ECF No. 4). Plaintiff seeks
injunctive relief, ordering defendant Steve Wolfson-as the
district attorney whose office prosecuted plaintiff and has
custody of the DNA evidence-to test the DNA. (ECF No. 4 at
screening plaintiff's complaint, Magistrate Judge
Ferenbach found that plaintiff properly brought his §
1983 action and may maintain the action. (ECF No. 3).
However, the magistrate also found that plaintiff failed to
state a plausible claim that his procedural due process
rights were violated. (ECF No. 3). Specifically, the
magistrate found that plaintiff failed to show how
Nevada's application of its habeas corpus time
limitations to his request for postconviction genetic marker
analysis is “fundamentally inadequate to vindicate his
substantive rights” as required by Dist.
Attorney's Office for the Third Judicial Dist. v.
Osborne, 557 U.S. 52, 71 (2009). (ECF No. 3 at 8).
Accordingly, Magistrate Judge Ferenbach recommends that
plaintiff's complaint be dismissed with leave to amend.
(ECF No. 3).
objects to the R&R arguing, inter alia, that the
magistrate erred in finding that he failed to state a due
process claim. (ECF No. 6). The court will address each in
may file specific written objections to the findings and
recommendations of a United States magistrate judge made
pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);
LR IB 3-2. Where a party timely objects to a magistrate
judge's report and recommendation, the court is required
to “make a de novo determination of those portions of
the [report and recommendation] to which objection is
made.” 28 U.S.C. § 636(b)(1). The court “may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate.”
to Local Rule IB 3-2(a), a party may object to the report and
recommendation of a magistrate judge within fourteen (14)
days from the date of service of the findings and
recommendations. Similarly, Local Rule 7-2 provides that a
party must file an opposition to a motion within fourteen
(14) days after service of the motion.
initial matter, the court acknowledges that plaintiff's
complaint and objection were filed pro se and are
therefore held to less stringent standards. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (“A document filed
pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.”) (internal quotation marks and citation
omitted). However, “pro se litigants in an
ordinary civil ...