Mendoza v. Abowd et al

Filing 6

ORDER - The Report and Recommendation of Magistrate Judge William G. Cobb (ECF No. 3 ) is accepted and adopted in its entirety. Plaintiff's IFP Application (ECF No. 1 ) is granted; however, Plaintiff is required to pay the initial partia l filing fee in the amount of $10.33. Thereafter, whenever his prison account exceeds $10, he will be required to make monthly payments in the amount of twenty percent of the preceding month's income credited to his account until the filing fee is paid. (Copy of Order mailed to NDOC Inmate Services on 10/23/2017.) Clerk shall file the Complaint (ECF No. 1 -1). This action is dismissed with prejudice. Clerk shall enter judgment accordingly and close this case. Signed by Judge Miranda M. Du on 10/23/2017. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9
10

DANIEL ANDRADE MENDOZA,

Case No. 3:17-cv-00160-MMD-WGC

Plaintiff,

11
v.

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

12
KAREN ABOWD, 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. 3) (“R&R” or “Recommendation”) relating to Plaintiff’s

17

Application to Proceed In Forma Pauperis (ECF No. 1) and pro se Complaint (ECF No.

18

1-1). Plaintiff filed an objection thereto on July 12, 2017 (“Objection”), and a

19

supplemental objection on July 13, 2017 (“Supplemental Objection”) (ECF Nos. 4 & 5).

20

The Supplemental Objection was filed without leave of court in violation of LR 7-2(g).

21

Nevertheless, the Court has considered the Supplemental Objection.

22

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

23

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

24

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

25

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

26

recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). In light of Plaintiff’s

27

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

28

Magistrate Judge Cobb’s Recommendation.

1

The Magistrate Judge recommended that the Court grant Plaintiff’s application to

2

proceed in forma pauperis. The Magistrate Judge further recommended that this case be

3

dismissed with prejudice for failure to state any claim for relief because amendment

4

would be futile. Upon reviewing the Recommendation and Plaintiff’s filings, the Court

5

agrees with the Magistrate Judge. The arguments raised in Plaintiff’s Objection and

6

Supplemental Objection do not affect the Magistrate Judge’s reasoning. For example,

7

Plaintiff argues that the Magistrate Judge did not consider that the state court judge

8

failed to enforce his order to the district attorney to respond to the petition for writ of

9

habeas corpus, and that such control of “ministerial acts is not a discretionary judgment.”

10

(ECF No. 4 at 5.) However, even accepting Plaintiff’s allegations, the state court judge

11

nevertheless enjoyed absolute immunity because the allegations affect the proceedings

12

before the judge. See Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per curiam) (Although

13

unfairness and injustice to a litigant may result on occasion, “it is a general principle of

14

the highest importance to the proper administration of justice that a judicial officer, in

15

exercising the authority vested in him, shall be free to act upon his own convictions,

16

without apprehension of personal consequences to himself.”) As another example, the

17

Magistrate Judge found that to the extent Plaintiff seeks relief under 42 U.S.C. § 1981,

18

he fails to state a claim because a habeas petition is not a contract. (ECF No. 3 at 6.)

19

Plaintiff disagrees, arguing that the “U.S. Constitution is a social contract . . .; the

20

Constitution protects the habeas corpus action.” ECF No. 4 at 9.) Plaintiff is wrong. A

21

petition for writ of habeas corpus is a request for the court to determine if the petitioner

22

was unlawfully detained. It is not a legal contract. Accordingly, the Court finds good

23

cause to adopt the Magistrate Judge’s Recommendation in full.

24

It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

25

Recommendation of Magistrate Judge William G. Cobb (ECF No. 3) is accepted and

26

adopted in its entirety.

27

It is further ordered that Plaintiff’s Application to Proceed In Forma Pauperis (ECF

28

No. 1) is granted; however, Plaintiff is required to pay the initial partial filing fee in the
2

1

amount of $10.33. Thereafter, whenever his prison account exceeds $10, he will be

2

required to make monthly payments in the amount of twenty percent of the preceding

3

month’s income credited to his account until the filing fee is paid.

4

It is further ordered that the Clerk file the Complaint (ECF No. 1-1).

5

It is ordered that this action is dismissed with prejudice.

6

The Clerk is instructed to enter judgment accordingly and close this case.

7

DATED THIS 23rd day of October 2017.

8
9
10

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3