Tingley v. Nevada Department of Public Safety et al

Filing 15

ORDER accepting and adopting 8 Report and Recommendation, granting 4 Motion/Application for Leave to Proceed in forma pauperis (monthly payments due until filing fee paid in full; copy of order mailed to NDOC 5/21/15), directing clerk to file 5 Amended Complaint, and dismissing case without prejudice and without leave to amend. Signed by Judge Miranda M. Du on 5/21/15. (Copies have been distributed pursuant to the NEF - JC)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

ADAM WYNN TINGLEY,
Plaintiff,

10
11
12

Case No. 3:14-cv-00406-MMD-VPC

v.
NEVADA DEPARTMENT OF PUBLIC
SAFETY, et al.,

ORDER REGARDING REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE
VALERIE P. COOKE

Defendants.

13
14
15

Before the Court is the Report and Recommendation of United States Magistrate

16

Judge Valerie P. Cooke (dkt. no. 8) (“R&R”) relating to plaintiff’s application to proceed in

17

forma pauperis (dkt. no. 4) and pro se civil rights complaint pursuant to 42 U.S.C. ' 1983

18

(dkt. no. 5). An objection to the R&R was timely filed by Plaintiff (“Objection”) (dkt. no.

19

10).

20

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

21

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

22

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

23

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

24

recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails

25

to object, however, the court is not required to conduct “any review at all . . . of any issue

26

that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

27

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

28

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

1

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

2

of review employed by the district court when reviewing a report and recommendation to

3

which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

4

1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the

5

view that district courts are not required to review “any issue that is not the subject of an

6

objection.”).

7

The R&R recommended granting Plaintiff’s application to proceed in for a

8

pauperis and dismissing Plaintiff’s Amended Complaint without prejudice for failure to

9

state a claim under 42 U.S.C. § 1983. Plaintiff objects to the R&R’s recommendation of

10

dismissal.

11

Plaintiff is an inmate at Warm Springs Correctional Center. (Dkt. no. 5 at 1.)

12

Plaintiff’s claims are based on alleged “grossly inaccurate” information in his

13

presentence investigation report (“PSI”) including information about his criminal record,

14

in connection with his sentencing that led to a harsher sentence and denial of probation.

15

(Id. at 4-7.) He seeks as relief monetary damages, revision of his PSI and “[a]

16

mechanism to be put in place that allows the courts to correct challenged inaccuracies in

17

a P.S.I.” (Id. at 9.) The R&R correctly found that Plaintiff cannot state a claim under §

18

1983 because his allegations relate to a challenge to the legality or duration of his

19

custody. (Dkt no. 8 at 4.)

20

In his objection, Plaintiff contends that he is not asking to modify his sentence or

21

for a new trial, but is asserting claims based on the alleged inaccurate information in the

22

PSI. (Dkt. no. 10 at 1-2.) This clarification may reflect that Plaintiff does not wish to

23

pursue a petition for habeas corpus to challenge the fact or length of his confinement,

24

but it does not rescue his claims. As the Ninth Circuit Court of Appeals has clarified in

25

explaining the availability of § 1983 in the context of prisoner litigation, “a § 1983 action

26

is a proper remedy for a state prisoner who is making a constitutional challenge to the

27

conditions of his prison life, but not to the fact or length of his custody.” Ramirez v.

28

Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (quoting Preiser v. Rodriguez, 411 U.S. 475,
2

1

498-99 (1973). As alleged, Plaintiff is challenging the information in the PSI that led to

2

his confinement and denial of probation, not the conditions of prison life. Accordingly

3

Plaintiff cannot state a claim under § 1983.

4

It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

5

Recommendation of Magistrate Judge Valerie P. Cooke (dkt. no. 8) is accepted and

6

adopted in its entirety.

7

It is further ordered that Plaintiff’s application to proceed in forma pauperis (dkt.

8

no. 4) is granted. Plaintiff shall not be required to pay an initial installment fee. The full

9

filing fee shall still be due, pursuant to 28 U.S.C. § 1915(b), as amended by the Prisoner

10

Litigation Reform Act of 1996 (“PLRA”). Plaintiff shall be permitted to maintain this action

11

to conclusion without the necessity of prepayment of fees or costs or the giving of

12

security therefor. This order granting in forma pauperis status shall not extend to the

13

issuance of subpoenas at government expense. The full filing fee shall remain due

14

pursuant to 28 U.S.C. § 1915. Pursuant to 28 U.S.C. § 1915(b), the Nevada Department

15

of Corrections shall pay to the Clerk of the United States District Court, District of

16

Nevada, 20% of the preceding month’s deposits to the account of Adam Wynn Tingley,

17

Inmate No. 80020 (in months that the account exceeds $10.00) until the full $350 filing

18

fee has been paid for this action. The Clerk shall send a copy of this order to the

19

attention of the Chief of Inmate Services for the Nevada Department of Corrections, P.O.

20

Box 7011, Carson City, NV 89702.

21
22
23
24

It is further ordered that the Clerk shall detach and file the Amended Complaint
(dkt. no. 5).
It is further ordered that this case is dismissed without prejudice and without leave
to amend.

25

The Clerk is directed to close this case.

26

DATED THIS 21st day of May 2015.

27

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

28
3