United States District Court, D. Nevada
ORDER ACCEPTING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE VALERIE P. COOKE
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation of United States
Magistrate Judge Valerie P. Cooke (ECF No. 6)
(“R&R”) relating to Plaintiff's
application to proceed in forma pauperis
(“IFP”) (ECF No. 1) and pro se complaint
(ECF No. 1-1). The Court has reviewed Plaintiff's
objection to the R&R. (ECF No. 7.) For the reasons
discussed herein, the Court overrules Plaintiff's
objection and adopts the R&R.
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.” 28 U.S.C. § 636(b)(1). Where a 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, 1123 (9th Cir. 2003)
(disregarding the standard of review employed by the district
court when reviewing a report and recommendation to which no
objections were made); see also Schmidt v.
Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003)
(reading the Ninth Circuit's decision in
Reyna-Tapia as adopting the view that district
courts are not required to review “any issue that is
not the subject of an objection.”). Thus, if there is
no objection to a magistrate judge's recommendation, then
the court may accept the recommendation without review.
See, e.g., Johnstone, 263 F.Supp.2d at 1226
(accepting, without review, a magistrate judge's
recommendation to which no objection was filed).
R&R recommends granting the IFP. (ECF No. 6 at 1.)
Plaintiff does not object. The Court will adopt the
R&R's recommendation and will grant Plaintiff's
R&R recommends dismissing claims against the State of
Nevada and Washoe County because the State of Nevada cannot
be sued under 42 U.S.C. § 1983, and claims against
Washoe County because there are no allegations that Plaintiff
suffered constitutional deprivation as a result of Washoe
County's policy or custom. (Id. at 4-5.)
Plaintiff does not appear to object. Nevertheless, the Court
agrees with Judge Cooke.
the R&R recommends dismissing (1) the claims in Counts I
and II based primarily on the alleged wrongful conduct of
Plaintiff's defense counsel-deputy public defender
Jessica Longley-in connection with her representation of
Plaintiff in two criminal cases; and (2) the claims in Count
III relating to (a) a search conducted in violation of the
Fourth Amendment, (b) retaliation in violation of the First
Amendment with leave to amend and (c) denial of the right of
access to courts in violation of the First Amendment with
leave to amend. (Id. at 5-9.) Judge Cooke found that
the claims in Counts I and II are barred under Heck v.
Humphrey, 512 U.S. 477 (1994), and, even assuming one of
the criminal cases has not concluded,  the Court should
abstain to avoid interfering with the state prosecution.
(Id. at 5-6.)
Heck, the Supreme Court held that “in order to
recover damages for [an] allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called
into question by a federal court's issuance of a writ of
habeas corpus, 28 U.S.C. § 2254.” Id. at
486-87. “A claim for damages bearing that relationship
to a conviction or sentence that has not been . . .
invalidated is not cognizable under § 1983.”
Id. at 487. Moreover, the Heck doctrine
applies to cases where criminal charges are pending.
Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir.
2000) (“a § 1983 Fourth Amendment claim alleging
illegal search and seizure does not accrue under
Heck until the criminal charges have been
dismissed”), overruled in part on other grounds by
Wallace v. Kato, 549 U.S. 384, 393-394 (2007).
objection contends that he has stated claims against Longley
and focused again on her alleged wrongful conduct. However,
the Court agrees with Judge Cooke that claims against Longley
cannot proceed under Heck unless the underlying
conviction in case number CR16-1245 has been set aside. To
the extent Plaintiff's claims are based on Longley's
alleged conduct in the on-going criminal case-CR
16-1240-Heck applies to bar Plaintiff's claims
while the criminal charges are pending.
also argues why he has stated a claim in Count III. Again,
the Court agrees with Judge Cooke that his allegations fail
to state a claim.
therefore ordered that the Report and Recommendation of
Magistrate Judge Valerie P. Cooke (ECF No. 6) is accepted and
adopted in its entirety.
further ordered that Plaintiff's application to proceed
in forma pauperis (ECF No. 1) is granted. Pursuant
to 28 U.S.C. § 1915(b)(2), the Sacramento County Jail
must pay to the Clerk of the United States District Court,
District of Nevada, 20% of the preceding month's deposits
from the account of Alvon Surrell, # 3955853 (in months that
the account exceeds $10.00) until the full $350.00 filing fee
had been paid for this action. If plaintiff should be
transferred to another correctional facility, the Sacramento
County Jail Accounting Supervisor (or its equivalent) must
send a copy of this order to the new facility incidcating the
amount that Plaintiff has paid towards his filing fee, so
that funds may continue to be deducted from Plaintiff's
account. The Clerk is directed to send a copy of this order
to the Jail Accounting Supervisory (or its equivalent) at
Sacramento County Jail, 651 I Street, Sacramento, CA 95814.
further ordered that the Clerk file Plaintiff's complaint
(ECF No. 1-1.)
further ordered that claims against the State of Nevada and
the claims for damages against Nevada Attorney General in his
official capacity be dismissed with prejudice. The claims in
Counts I and II are dismissed against all defendants
(including Longley, Washoe County and Washoe County District
Attorney's Office) without prejudice and without leave to
amend. The Fourth Amendment claim in Count III is dismissed
with prejudice. The First Amendment retaliation claim and
access to courts claims in Count III against John Doe are
dismissed without prejudice and with leave to amend.
Accordingly, Plaintiff is granted leave to amend the two
aforementioned claims in Count III against John Doe.
further ordered that that Plaintiff will have thirty (30)
days from the date of this order to file an amended complaint
remedying, if possible, the defects identified in the R&R
with respect to the two claims in Count III. The amended
complaint must be a complete document in and of itself, and
will supersede the original complaint in its entirety. Any
allegations, parties, or requests for relief from prior
papers that are not carried forward in the amended complaint
will no longer be before the court. Plaintiff is advised that
if he does not file an amended complaint within the specified
time period, the Court will dismiss the claims in Count III
with prejudice. Plaintiff must clearly title the amended
complaint by placing the words “FIRST AMENDED”
immediately above ...