Wright v. Frayn et al

Filing 21

ORDER - The Report and Recommendation (ECF No. 15 ) is accepted and adopted in full. Plaintiff's Complaint is dismissed with prejudice. Plaintiff's objection (ECF No. 20 ) is overruled. Plaintiff's motion for disqualification (ECF No. 17 ) is denied. Clerk of the Court shall close this case. Signed by Judge Miranda M. Du on 4/29/2019. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BRIAN WRIGHT,

Case No. 2:17-cv-01844-MMD-CWH
Plaintiff,

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ORDER

v.
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KIMBERLY FRAYN, et al.,
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Defendants.
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I.

SUMMARY

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This is a civil rights action brought by an individual—Plaintiff Brian Wright—who is

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incarcerated within the Nevada Department of Correction (“NDOC”). Before the Court is

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Plaintiff’s objection (ECF No. 20) to Magistrate Judge Carl W. Hoffman’s screening order

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and report and recommendation (“Report and Recommendation” or “R&R”) (ECF No. 15).

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Additionally before the Court is Plaintiff’s motion for disqualification of Magistrate Judge

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Hoffman. (ECF No. 17.) For the following reasons, the Court overrules Plaintiff’s objection

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and denies Plaintiff’s motion for disqualification.

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II.

BACKGROUND

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Plaintiff generally alleges in the Complaint that he was framed for crimes he did not

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commit by the Assistant United States Attorneys who prosecuted his criminal case, an FBI

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agent, a Henderson Police Department officer, and his defense attorney. (ECF No. 16 at

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2-13.) Magistrate Judge Hoffman recommended dismissing the Complaint with prejudice

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under Heck v. Humphrey, 512 U.S. 477 (1994), because a judgment in favor of Plaintiff

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would necessarily imply the invalidity of his conviction or sentence. (ECF No. 15 at 3.)

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III.

PLAINTIFF’S OBJECTION (ECF NO. 20)

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

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

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” Id. In light of Plaintiff’s objection, the Court

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will engage in a de novo review to determine whether to adopt Magistrate Judge Hoffman’s

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R&R.

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Judge Hoffman characterized this action as a “civil-rights case under 42 U.S.C. §

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1983.” (ECF No. 15 at 3.) Plaintiff objects that he filed a Bivens action—not a § 1983

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action. (ECF No. 20 at 2.) The distinction is irrelevant. See Van Strum v. Lawn, 940 F.2d

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406, 409 (9th Cir. 1991) (“Actions under § 1983 and those under Bivens are identical save

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for the replacement of a state actor under § 1983 by a federal actor under Bivens.”).

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Plaintiff also argues that he should be permitted an opportunity to amend the

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Complaint. (Id.) But amendment would be futile. The essential question presented in the

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Complaint is whether Plaintiff was framed for crimes he did not commit—this question

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cannot be decided in a § 1983 or Bivens action. See Heck, 512 U.S. at 486-87 (“[W]hen a

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state prisoner seeks damages in a § 1983 suit, the district court must consider whether a

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judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or

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sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate

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that the conviction or sentence has already been invalidated.”).
Accordingly, Plaintiff’s objection is overruled.

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IV.

PLAINTIFF’S MOTION FOR DISQUALIFICATION (ECF NO. 17)

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Plaintiff argues that Magistrate Judge Hoffman should be disqualified from this case

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under 28 U.S.C. § 455(b)(1) and 28 U.S.C. § 144. (ECF No. 17 at 1.) The first provision

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requires disqualification when the judge has a personal bias or prejudice concerning a

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party. See 28 U.S.C. § 455(b)(1). The second provision requires another judge to be

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assigned to a case “[w]henever a party makes and files a timely and sufficient affidavit that

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the judge before whom the matter is pending has a personal bias or prejudice either

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against him or in favor of any adverse party.” See 28 U.S.C. § 144.

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The basis for Plaintiff’s motion is that Judge Hoffman allegedly has done nothing in

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this case for two years. (See ECF No. 17 at 2.) The record contradicts Plaintiff’s allegation.

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Judge Hoffman has issued numerous orders since the case was initiated on July 3, 2017.

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(See, e.g., ECF No. 3 (denying without prejudice Plaintiff’s application to proceed in forma

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pauperis); ECF No. 8 (same); ECF No. 13 (recommending denial of pending dispositive

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motions); ECF No. 15 (screening order and report and recommendation).) Moreover, even

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if Judge Hoffman had not issued any orders during the pendency of this action, such

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purported conduct, or even delay in ruling on pending matters, does not evidence bias or

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prejudice to support disqualification.
Accordingly, the Court denies Plaintiff’s motion.

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several cases

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not discussed above. The Court has reviewed these arguments and cases and determines

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that they do not warrant discussion as they do not affect the outcome of the motion and

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objection before the Court.

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It is therefore ordered that the Report and Recommendation of Magistrate Judge

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Carl W. Hoffman (ECF No. 15) is accepted and adopted in full. Plaintiff’s Complaint is

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dismissed with prejudice.

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It is further ordered that Plaintiff’s objection (ECF No. 20) is overruled.

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It is further ordered that Plaintiff’s motion for disqualification (ECF No. 17) is denied.

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It is further ordered that the Clerk of the Court close this case.

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DATED THIS 29th day of April 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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