United States District Court, D. Nevada
before the court is Magistrate Judge Koppe's report and
recommendation (“R&R”). (ECF No. 5). Also
before the court is plaintiff Kenneth Morrell's motion
for writ of mandamus. (ECF No. 11).
Review of a report and recommendation
court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the
magistrate.” 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.” 28 U.S.C.
party fails to object, however, the court is not required to
conduct “any review at all . . . of any issue that is
not the subject of an objection.” Thomas v.
Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth Circuit
has recognized that a district court is not required to
review a magistrate judge's report and recommendation
where no objections have been filed. See United States v.
Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding
the standard of review employed by the district court when
reviewing a report and recommendation to which no objections
Screening a complaint
granting a request to proceed in forma pauperis, the
court then screens the complaint under 28 U.S.C. §
1915(e)(2). Federal courts may dismiss an action if it (1) is
legally “frivolous or malicious, ” (2) fails to
state a claim upon which relief may be granted, or (3) seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2). Section 1915 conserves
judicial resources by empowering courts to dismiss actions
that “fall somewhere between the frivolous and the
farcical and so foster disrespect for our laws.”
Crawford-El v. Britton, 523 U.S. 574, 601 (1998)
(Kennedy, J., concurring).
the litigant files pro se, courts use “less
stringent standards” when considering the complaint.
See Haines v. Kerner, 404 U.S. 519, 520 (1972).
“Such litigants often lack the resources and freedom
necessary to comply with the technical rules of modern
litigation.” Mala v. Crown Bay Marina, Inc.,
704 F.3d 239, 244-45 (3d Cir. 2013) (citing Moore v.
Florida, 703 F.2d 516, 520 (11th Cir. 1983)). However,
pro se litigants “should not be treated more
favorably than parties with attorneys of record.”
Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir.
court dismisses a complaint under § 1915(e), the
plaintiff should be given leave to amend with directions to
cure the complaint's deficiencies, unless it is clear
from the face of the complaint that amendment would be
futile. See Cato v. United States, 70 F.3d 1103,
1106 (9th Cir. 1995) (citation omitted). Courts are not
required to entertain duplicative or redundant lawsuits and
may dismiss them as frivolous or malicious under §
1915(e). See Id. at 1105 n.2 (noting that courts may
dismiss under § 1915 a complaint that merely repeats
pending or previously litigated claims).
has not formally objected to the R&R. However,
plaintiff's filings are pro se, and thus this
court construes them liberally. See 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). Thus, the court construes plaintiff's motion to
compel discovery (ECF No. 6) as an objection. See
Id. Although plaintiff does not adequately address or
brief objectionable issues related to the R&R in
plaintiff's motion to compel, and thus the court need not
conduct a de novo review of the R&R, see
Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991),
the court will review the screening order de novo to
ensure finality in the present case.
Supreme Court has held that a prisoner cannot bring a §
1983 claim to collaterally attack a criminal conviction
unless “the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid
by a state tribunal authorized to make such a determination,
or called into question by a federal court's issuance of
a writ of habeas corpus.” Heck v. Humphrey,
512 U.S. 477, 486-87 (1994). In considering whether a §
1983 claim is barred by Heck, courts ask whether a
ruling favoring the plaintiff would necessarily imply that
plaintiff's conviction or sentence is invalid. See,
e.g., Szajer v. City of Los Angeles, 632 F.3d 607, 611
(9th Cir. 2011). If plaintiff's requested relief would
necessarily imply the invalidity of plaintiff's
conviction, then plaintiff's claim is barred under
Heck. See, e.g., Cabrera v. City of Huntington
Park, 159 F.3d 374, 380 (9th Cir. 1998) (per
extraordinary circumstances, federal courts may not interfere
with pending state criminal prosecutions, even when they
raise issues related to federal rights or interests.
Younger v. Harris, 401 U.S. 37, 44 (1971). Federal
courts must abstain from interfering with state prosecutions
under Younger if:
(1) a state initiated proceeding is ongoing; (2) the
proceeding implicates important state interests; (3) the
federal plaintiff is not barred from litigating federal
constitutional issues in the state proceeding; and (4) the
federal court action would ...