Riggs v. Sandie et al

Filing 6

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)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DANIEL HARVEY RIGGS,

Case No. 3:16-cv-00477-MMD-WGC
Plaintiff,

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v.

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE
WILLIAM G. COBB

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WILLIAM SANDIE, et al.,
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Defendants.
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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. 4) (“R&R” or “Recommendation”), recommending

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dismissal of Plaintiff’s pro se complaint (ECF No. 1). Plaintiff timely filed his objection to

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the R&R. (ECF No. 5.)

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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 Plaintiff’s

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objection, the Court engages in a de novo review to determine whether to adopt

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Magistrate Judge Cobb’s Recommendation.

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The Complaint is based on criminal and judicial proceedings against Plaintiff.

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(ECF No. 1.) The Magistrate Judge recommends that the Court dismiss without

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prejudice Plaintiff’s claims based on double jeopardy, an invalid search that led to his

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conviction, and the invalidity of the state statutes used to convict him, as such clams

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must be brought in a petition for writ of habeas corpus under 28 U.S.C. § 2254, after

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exhausting state administrative remedies. (ECF No. 4.) The Magistrate Judge further

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recommends that Plaintiff’s claims against Judges Deriso, Mancuso and Flanagan be

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dismissed with prejudice because these judges are entitled to absolute immunity. In his

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objection, Plaintiff contends that he seeks to “vacate” the state court judgment and hold

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the judicial officers accountable. (ECF No. 5.) The Court agrees with the Magistrate

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Judge’s recommendation that the proper vehicle for Plaintiff is through a petition for

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habeas corpus and his claims against the judicial officers involved in his proceedings are

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precluded because they enjoy absolute immunity from suit. The Court will therefore

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adopt the Magistrate Judge’s Recommendation in full.

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It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge William G. Cobb (ECF No. 4) is accepted and

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adopted in its entirety. Plaintiff’s claims based on double jeopardy, an invalid search that

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led to his conviction, and the invalidity of the state statues used to convict him are

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dismissed without prejudice. Plaintiff’s claims against Judges Deriso, Mancuso and

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Flanagan are dismissed with prejudice.

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The Clerk is instructed to close this case.

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DATED THIS 2nd day of May 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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