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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 10 DANIEL HARVEY RIGGS, Case No. 3:16-cv-00477-MMD-WGC Plaintiff, 11 v. ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE WILLIAM G. COBB 12 WILLIAM SANDIE, et al., 13 Defendants. 14 15 Before the Court is the Report and Recommendation of United States Magistrate 16 Judge William G. Cobb (ECF No. 4) (“R&R” or “Recommendation”), recommending 17 dismissal of Plaintiff’s pro se complaint (ECF No. 1). Plaintiff timely filed his objection to 18 the R&R. (ECF No. 5.) 19 This Court “may accept, reject, or modify, in whole or in part, the findings or 20 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 21 timely objects to a magistrate judge’s report and recommendation, then the court is 22 required to “make a de novo determination of those portions of the [report and 23 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). In light of Plaintiff’s 24 objection, the Court engages in a de novo review to determine whether to adopt 25 Magistrate Judge Cobb’s Recommendation. 26 The Complaint is based on criminal and judicial proceedings against Plaintiff. 27 (ECF No. 1.) The Magistrate Judge recommends that the Court dismiss without 28 prejudice Plaintiff’s claims based on double jeopardy, an invalid search that led to his 1 conviction, and the invalidity of the state statutes used to convict him, as such clams 2 must be brought in a petition for writ of habeas corpus under 28 U.S.C. § 2254, after 3 exhausting state administrative remedies. (ECF No. 4.) The Magistrate Judge further 4 recommends that Plaintiff’s claims against Judges Deriso, Mancuso and Flanagan be 5 dismissed with prejudice because these judges are entitled to absolute immunity. In his 6 objection, Plaintiff contends that he seeks to “vacate” the state court judgment and hold 7 the judicial officers accountable. (ECF No. 5.) The Court agrees with the Magistrate 8 Judge’s recommendation that the proper vehicle for Plaintiff is through a petition for 9 habeas corpus and his claims against the judicial officers involved in his proceedings are 10 precluded because they enjoy absolute immunity from suit. The Court will therefore 11 adopt the Magistrate Judge’s Recommendation in full. 12 It is therefore ordered, adjudged and decreed that the Report and 13 Recommendation of Magistrate Judge William G. Cobb (ECF No. 4) is accepted and 14 adopted in its entirety. Plaintiff’s claims based on double jeopardy, an invalid search that 15 led to his conviction, and the invalidity of the state statues used to convict him are 16 dismissed without prejudice. Plaintiff’s claims against Judges Deriso, Mancuso and 17 Flanagan are dismissed with prejudice. 18 The Clerk is instructed to close this case. 19 DATED THIS 2nd day of May 2017. 20 21 22 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 2

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