Myers v. Whomes
Filing
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ORDER adopting and accepting in its entirety ECF No. 3 Report and Recommendation; granting ECF No. 1 IFP Application - NDOC to pay Clerk from inmate account (copy of NEF sent to Finance, order mailed to NDOC Chief of Inmate Services); directing Clerk to file ECF No. 1 -1 complaint; dismissing without prejudice the complaint; directing Clerk to close case. Signed by Judge Miranda M. Du on 5/17/2016. (Copies have been distributed pursuant to the NEF - KR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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JOSHUA CARY MYERS,
Case No. 3:16-cv-00115-MMD-WGC
Plaintiff,
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v.
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RODGER WHOMES, ESQ.,
ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
WILLIAM G. COBB
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Defendant.
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I.
SUMMARY
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Before the Court is the Report and Recommendation of United States Magistrate
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Judge William G. Cobb (ECF No. 3) (“R&R”) relating to plaintiff’s application to proceed
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in forma pauperis (ECF No. 1) and pro se complaint (ECF No. 1-1). The Court has
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reviewed Plaintiff’s objection (ECF No. 7). The Court accepts and adopts the R&R in full.
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II.
BACKGROUND
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Plaintiff asserts claims under 28 U.S.C. ' 1983 against Rodger Whomes, his
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former attorney in his state criminal action, based on allegations that Whomes forced
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him to take a plea deal. (ECF No. 1-1.) Plaintiff’s allegations are further detailed in the
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R&R, which this Court adopts. (ECF No. 3.)
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complaint after the Magistrate Judge issued the R&R. (ECF No. 4.) The gravamen of
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the claims in the proposed amended complaint is the same as in the complaint which the
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Magistrate Judge screened — the claims are based on allegations that Whomes forced
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Plaintff to take a plea deal. (ECF No. 4.)
Plaintiff filed a proposed amended
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III.
DISCUSSION
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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.” 28 U.S.C. § 636(b)(1). In light of Plaintiffs’
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objections, the Court has engaged in a de novo review to determine whether to adopt
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Magistrate Judge Cobb’s recommendation. Where a party fails to object, however, the
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court is not required to conduct “any review at all . . . of any issue that is not the subject
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of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth Circuit has
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recognized that a district court is not required to review a magistrate judge’s report and
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recommendation where no objections have been filed. See United States v. Reyna-
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Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by
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the district court when reviewing a report and recommendation to which no objections
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were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003)
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(reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that district
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courts are not required to review “any issue that is not the subject of an objection.”).
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Thus, if there is no objection to a magistrate judge’s recommendation, then the court
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may accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d
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at 1226 (accepting, without review, a magistrate judge’s recommendation to which no
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objection was filed).
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In light of Plaintiff’s objection to the R&R, the Court has conducted a de novo
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review to determine whether to adopt the Magistrate Judge’s recommendations. The
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Magistrate Judge recommends granting Plaintiff’s application to proceed in format
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pauperis, filing the complaint and dismissing the action without prejudice because
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Plaintiff’s claims are barred under Heck v. Humphrey, 512 U.S. 477 (1994). (ECF No. 3
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at 4.) “The holding in Heck applies . . . where ‘a judgment in favor of the plaintiff would
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///
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necessarily imply the invalidity of his conviction or sentence.’” Weilburg v. Shapiro, 488
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F.3d 1202, 1206 (9th Cir. 2007) (citing Heck, 512 U.S. at 487).1
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In his objection, Plaintiff argues that his claims are not precluded under Heck
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because a judgment in his favor would not invalidate his conviction. 2 (ECF No. 7 at 2.)
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He argues that his constitutional rights were violated as a result of Whomes’ refusal to
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file a motion to withraw Plaintiff’s guilty plea and Whomes’ subsequent withdrawal from
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representing Plaintiff in the criminal case. (Id. at 2-3.) If Whomes violated Plaintiff’s
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constitutional rights by refusing to file a motion to withdraw Plaintiff’s guilty plea and by
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his withdrawal from representing Plaintiff, then Plaintiff’s conviction could not have been
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valid. The Court thus agrees with the Magistrate Judge that a judgment in Plaintiff’s favor
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would necessarily invalidate his conviction. Accordingly, the Court will adopt the R&R.
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IV.
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CONCLUSION
It
is
therefore
ordered,
adjudged
and
decreed
that
the
Report
and
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Recommendation of Magistrate Judge William G. Cobb (ECF No. 3) is accepted and
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adopted in its entirety.
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It is further ordered that plaintiff’s application to proceed in form pauperis (ECF
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No. 1) is granted; however, pursuant to pursuant to 28 U.S.C. § 1915(b), he is still required
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to pay the full amount of the filing fee over time. Within thirty (30) days of the date of this
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order, Plaintiff will be required to pay an initial partial filing fee of $21.84. Thereafter, Plaintiff
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will be required to make monthly payments of twenty percent of the preceding month’s
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income credited to his account to be forwarded by the agency having custody over Plaintiff
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to the Clerk of this Court each time the amount in Plaintiff’s account exceeds $10 until the
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filing fee is paid..
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It is further ordered that the Clerk detach and file the complaint (ECF No. 1-1).
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The holding does not apply in cases where the plaintiff can demonstrate that the
conviction or sentence has been invalidated. Guerrero v. Gates, 442 F.3d 697, 703 (9th
Cir. 2003).
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Plaintiff acknowledges that the R&R correctly found that to the extent Plaintiff is
asserting a claim of ineffective assistance of counsel, the claim is properly raised in a
petition for writ of habeas corpus. (ECF No. 3 at 4; ECF No. 7 at 1.)
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It is further ordered that the complaint is dismissed without prejudice.
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The Clerk is directed to close this case.
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DATED THIS 17th day of May 2016.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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