Armstrong v. State of Nevada District Attorney Office

• Court: District Court, D. Nevada
• Decided: May 1, 2020
• Docket: 2:19-cv-00706
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 DERRICK A. ARMSTRONG, Case No. 2:19-cv-00706-RFB-VCF 8 Plaintiff, ORDER 9 v. 10 STATE OF NEVADA DISTRICT ATTORNEY OFFICE; LVMPD; ASHFORD 11 MANORS APARTMENTS; MARK G HARDING; GREGORY B DAMARIN; 12 ANTON GROSS; TAVION SAZOR; CAMERON; JAMES GUSTAN; JERRY 13 GOODWIN; ANDRE BATES; JOHN MOSS; LESLIE LORETTO; KELLEN BRESCIA; 14 ROCHELLE NELSON; KIMBERLY WEINRAUCH; SCOTT MAJEWSKI, 15 Defendants. 16 17 Before the Court is Plaintiff Derrick A. Armstrong’s (“Plaintiff’) Motion for Leave to 18 Proceed in forma pauperis. ECF No. 1.Pursuant to the Court’s obligation to screen complaints filed 19 20 by plaintiffs who proceed in forma pauperis, Magistrate Judge Ferenbach issued a report and 21 recommendation (“R&R”) that the case be dismissed and the application for leave to proceed in 22 forma pauperis be denied as moot. ECF No. 3; 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff timely filed 23 an objection to the R&R. ECF No.4. For the following reasons, the Court upholds the R&R and 24 dismisses the complaint. 25 26 A district court “may accept, reject, or modify, in whole or in part, the findings or 27 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). A party may file specific 28 written objections to the findings and recommendations of a magistrate judge. Id. § 636(b)(1); 1 Local Rule IB 3-2(a). When written objections have been filed, the district court is required to 2 “make a de novo determination of those portions of the report or specified proposed findings or 3 recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). 4 In this case, Plaintiff brought a claim under 42 U.S.C. §1983. Plaintiff alleges that members 5 6 of the Las Vegas Metropolitan Police Department conducted a warrantless search of his apartment 7 without probable cause that resulted in his incarceration. He asserts violations of his constitutional 8 rights under the Fourth Amendment and seeks monetary damages. Plaintiff attaches to his 9 complaint an order from the Nevada Supreme Court. In the order, the Nevada Supreme Court 10 concluded that the district court erred in failing to hold an evidentiary hearing on the question of 11 12 whether a third-party, Heather Hildebrand, had actual or apparent authority to consent to police 13 officers’ search of Plaintiff’s home. The Nevada Supreme Court subsequently reversed the 14 conviction and remanded the matter for further proceedings. 15 However, as Judge Ferenbach explains in his R&R, the district court subsequently 16 conducted an evidentiary hearing, and the Nevada Supreme Court affirmed Armstrong’s 17 18 conviction based on the findings made at the evidentiary hearing. Armstrong v. State, 381 P.3d 19 590 (Table) (Nev. 2012). The Nevada Court of Appeals also affirmed Armstrong’s conviction after 20 Armstrong raised an ineffective assistance of counsel argument on appeal. Armstrong v. State, No. 21 69898, 2017 WL 2200719 (Nev. App. May 17, 2017). Armstrong’s conviction has been upheld on 22 appeal and is therefore still in effect. 23 24 In order to recover monetary damages under a §1983 claim, as Plaintiff here seeks, he must 25 demonstrate that the conviction or sentence has been reversed on direct appeal, expunged by an 26 executive order, declared invalid by a state tribunal authorized to make that determination, or 27 called into question by federal court’s issuance of writ of habeas corpus. Heck v. Humphrey, 512 28 1 U.S. 477, 486 — 87 (1994). Heck therefore bars Plaintiff’s claim as there is a valid criminal 2 conviction against him. In his objection, Plaintiff attaches an order from the Nevada Supreme Court dated March

5 30, 2010. The order addressed Plaintiff’ s motion for clarification regarding its order to reverse and 6 | remand the conviction. The Nevada Supreme Court construed Plaintiff's motion as a petition for rehearing and denied the petition, confirming that “because the judgment of conviction is the 8 judgment from which this appeal was taken, [the Nevada Supreme Court’s] reversal was of the judgment of conviction.” ECF No. 4, Pl.’s Objection at 5.

Plaintiff's objection does not change the analysis. The district court reentered the original 12 | conviction after holding the evidentiary hearing, and the Nevada Court of Appeals has also subsequently upheld the conviction. Because Plaintiff’s § 1983 claim necessarily seeks to 14 implicate the constitutional validity of an outstanding conviction it is barred. See Roberts v. City of Fairbanks, 947 F.3d 1191, 1198 (9th Cir. 2020)(confirming that Heck bars a claim that . implicates the validity of an outstanding criminal judgment). 18 IT IS THEREFORE ORDERED that the Report and Recommendation (ECF No. 3) is 19 adopted in full. This case is DISMISSED and Plaintiffs application to proceed in forma pauperis 20 | is DENIED as moot. 21 The Clerk of the Court is instructed to close the case. 22 23 DATED: May 1, 2020. As 25 RICHARD F. BOULWARE, II 26 UNITED STATES DISTRICT JUDGE 27 28

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