Morrell v. Beverly et al

Filing 12

ORDER. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that 5 Magistrate Judge Koppe's R&R be, and the same hereby is, adopted in its entirety. IT IS FURTHER ORDERED that the instant case be, and the same hereby is, DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that 11 plaintiff's motion for writ of mandamus be, and the same hereby is, DENIED as moot. The clerk shall enter judgment accordingly and close the case. Signed by Judge James C. Mahan on 9/7/17. (Copies have been distributed pursuant to the NEF - ADR)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

KENNETH MORRELL,

8

Plaintiff(s),

9
10

Case No. 2:17-CV-1241 JCM (NJK)
ORDER

v.
THE STATE OF NEVADA, et al.,

11

Defendant(s).

12
13

Presently before the court is Magistrate Judge Koppe’s report and recommendation

14

(“R&R”). (ECF No. 5). Also before the court is plaintiff Kenneth Morrell’s motion for writ of

15

mandamus. (ECF No. 11).

16

I.

Legal Standard

17

i.

18

This court “may accept, reject, or modify, in whole or in part, the findings or

19

recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Where a party timely objects

20

to a magistrate judge’s report and recommendation, then the court is required to “make a de novo

21

determination of those portions of the [report and recommendation] to which objection is made.”

22

28 U.S.C. § 636(b)(1).

Review of a report and recommendation

23

Where a party fails to object, however, the court is not required to conduct “any review at

24

all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149

25

(1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review a

26

magistrate judge’s report and recommendation where no objections have been filed. See United

27

States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review

28
James C. Mahan
U.S. District Judge

1

employed by the district court when reviewing a report and recommendation to which no

2

objections were made).

3

ii.

4

Upon granting a request to proceed in forma pauperis, the court then screens the

5

complaint under 28 U.S.C. § 1915(e)(2). Federal courts may dismiss an action if it (1) is legally

6

“frivolous or malicious,” (2) fails to state a claim upon which relief may be granted, or (3) seeks

7

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

8

Section 1915 conserves judicial resources by empowering courts to dismiss actions that “fall

9

somewhere between the frivolous and the farcical and so foster disrespect for our laws.”

10

Screening a complaint

Crawford-El v. Britton, 523 U.S. 574, 601 (1998) (Kennedy, J., concurring).
Where the litigant files pro se, courts use “less stringent standards” when considering the

11
12

complaint. See Haines v. Kerner, 404 U.S. 519, 520 (1972). “Such litigants often lack the

13

resources and freedom necessary to comply with the technical rules of modern litigation.” Mala

14

v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013) (citing Moore v. Florida, 703

15

F.2d 516, 520 (11th Cir. 1983)). However, pro se litigants “should not be treated more favorably

16

than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986).

17

If the court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend

18

with directions to cure the complaint’s deficiencies, unless it is clear from the face of the complaint

19

that amendment would be futile. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (citation

20

omitted). Courts are not required to entertain duplicative or redundant lawsuits and may dismiss them

21

as frivolous or malicious under § 1915(e). See id. at 1105 n.2 (noting that courts may dismiss under §

22

1915 a complaint that merely repeats pending or previously litigated claims).

23
24

II.

Discussion
Plaintiff has not formally objected to the R&R. However, plaintiff’s filings are pro se, and
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A

25

thus this court construes them liberally.

26

document filed pro se is to be liberally construed, and a pro se complaint, however inartfully

27

pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”)

28

(internal quotation marks and citation omitted). Thus, the court construes plaintiff’s motion to

James C. Mahan
U.S. District Judge

-2-

1

compel discovery (ECF No. 6) as an objection. See id. Although plaintiff does not adequately

2

address or brief objectionable issues related to the R&R in plaintiff’s motion to compel, and thus

3

the court need not conduct a de novo review of the R&R, see Martinez v. Ylst, 951 F.2d 1153, 1157

4

(9th Cir. 1991), the court will review the screening order de novo to ensure finality in the present

5

case.

6

The Supreme Court has held that a prisoner cannot bring a § 1983 claim to collaterally

7

attack a criminal conviction unless “the conviction or sentence has been reversed on direct appeal,

8

expunged by executive order, declared invalid by a state tribunal authorized to make such a

9

determination, or called into question by a federal court’s issuance of a writ of habeas corpus.”

10

Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). In considering whether a § 1983 claim is barred

11

by Heck, courts ask whether a ruling favoring the plaintiff would necessarily imply that plaintiff’s

12

conviction or sentence is invalid. See, e.g., Szajer v. City of Los Angeles, 632 F.3d 607, 611 (9th

13

Cir. 2011). If plaintiff’s requested relief would necessarily imply the invalidity of plaintiff’s

14

conviction, then plaintiff’s claim is barred under Heck. See, e.g., Cabrera v. City of Huntington

15

Park, 159 F.3d 374, 380 (9th Cir. 1998) (per curiam).

16

Absent extraordinary circumstances, federal courts may not interfere with pending state

17

criminal prosecutions, even when they raise issues related to federal rights or interests. Younger

18

v. Harris, 401 U.S. 37, 44 (1971). Federal courts must abstain from interfering with state

19

prosecutions under Younger if:

20
21
22

(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
enjoin the proceeding or have the practical effect of doing so.
San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546

23
24

F.3d 1087, 1092 (9th Cir. 2008) (“San Jose”).
Here, plaintiff’s complaint is unclear as to whether a final judgment of conviction exists or

25
whether state criminal proceedings are ongoing. (See ECF No. 1-1 at 14–15). Nevertheless, under
26
either circumstance, plaintiff may not use § 1893 as a collateral attack mechanism. See Cabrera,
27

159 F.3d at 380; San Jose, 546 F.3d at 1092. Therefore, plaintiff’s claim, when liberally construed,

28
James C. Mahan
U.S. District Judge

-3-

1

does not state a cause of action upon which relief could be granted and will be dismissed. See 28

2

U.S.C. § 1915(e)(2).
Plaintiff’s motion for writ of mandamus is effectively a motion to reconsider Magistrate

3
4

Judge Koppe’s denial of plaintiff’s motion to compel discovery.

5

(“Wherefore these stated concerns, Plaintiff would request reversal in part of motion for

6

discovery.”). As the court dismisses the action for failure to state a claim, the motion is moot.

7

III.

(See ECF No. 11 at 1)

Conclusion

8

Dismissal pursuant to 28 U.S.C. § 1915(e)(2) is appropriate. As plaintiff could not amend

9

his complaint to state a cause of action upon which relief could be granted, the court will dismiss

10

with prejudice.

11

Accordingly,

12

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Magistrate Judge

13
14
15
16
17

Koppe’s R&R (ECF No. 5) be, and the same hereby is, adopted in its entirety.
IT IS FURTHER ORDERED that the instant case be, and the same hereby is, DISMISSED
WITH PREJUDICE.
IT IS FURTHER ORDERED that plaintiff’s motion for writ of mandamus (ECF No. 11)
be, and the same hereby is, DENIED as moot.

18

The clerk shall enter judgment accordingly and close the case.

19

DATED September 7, 2017.

20
21

__________________________________________
UNITED STATES DISTRICT JUDGE

22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge

-4-