Riggs v. Sandie et al
ORDER accepting and adopting in its entirety ECF No. 4 R&R; dismissing with and without prejudice Plaintiff's claims; directing Clerk to close case. Signed by Judge Miranda M. Du on 5/2/2017. (Copies have been distributed pursuant to the NEF - KR)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
DANIEL HARVEY RIGGS,
Case No. 3:16-cv-00477-MMD-WGC
ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
WILLIAM G. COBB
WILLIAM SANDIE, et al.,
Before the Court is the Report and Recommendation of United States Magistrate
Judge William G. Cobb (ECF No. 4) (“R&R” or “Recommendation”), recommending
dismissal of Plaintiff’s pro se complaint (ECF No. 1). Plaintiff timely filed his objection to
the R&R. (ECF No. 5.)
This 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). In light of Plaintiff’s
objection, the Court engages in a de novo review to determine whether to adopt
Magistrate Judge Cobb’s Recommendation.
The Complaint is based on criminal and judicial proceedings against Plaintiff.
(ECF No. 1.) The Magistrate Judge recommends that the Court dismiss without
prejudice Plaintiff’s claims based on double jeopardy, an invalid search that led to his
conviction, and the invalidity of the state statutes used to convict him, as such clams
must be brought in a petition for writ of habeas corpus under 28 U.S.C. § 2254, after
exhausting state administrative remedies. (ECF No. 4.) The Magistrate Judge further
recommends that Plaintiff’s claims against Judges Deriso, Mancuso and Flanagan be
dismissed with prejudice because these judges are entitled to absolute immunity. In his
objection, Plaintiff contends that he seeks to “vacate” the state court judgment and hold
the judicial officers accountable. (ECF No. 5.) The Court agrees with the Magistrate
Judge’s recommendation that the proper vehicle for Plaintiff is through a petition for
habeas corpus and his claims against the judicial officers involved in his proceedings are
precluded because they enjoy absolute immunity from suit. The Court will therefore
adopt the Magistrate Judge’s Recommendation in full.
Recommendation of Magistrate Judge William G. Cobb (ECF No. 4) is accepted and
adopted in its entirety. Plaintiff’s claims based on double jeopardy, an invalid search that
led to his conviction, and the invalidity of the state statues used to convict him are
dismissed without prejudice. Plaintiff’s claims against Judges Deriso, Mancuso and
Flanagan are dismissed with prejudice.
The Clerk is instructed to close this case.
DATED THIS 2nd day of May 2017.
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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