Clark v. State of Nevada

Opinion

3 William Clark, ) 4 ) Plaintiff, ) Case No.: 2:21-cv-00686-GMN-EJY 5 vs. ) 6 ) ORDER State of Nevada, et al., ) 7 ) Defendants. ) 8 9 Pending before the Court is the Report and Recommendation, (ECF No. 4), of United 10 States Magistrate Judge Elayna J. Youchah, which states that Plaintiff William Clark’s 11 (“Plaintiff’s”) Complaint, (ECF No. 1-1), should be dismissed without prejudice. The Report 12 and Recommendation explains that Plaintiff, a pro se prisoner, brings this case pursuant to 42 13 U.S.C. § 1983, which creates a private right of action for any party that has been deprived of 14 “any rights, privileges, or immunities secured by the Constitutions and laws.” (R&R 2:24–27, 15 ECF No. 4) (quoting 42 U.S.C. § 1983). Plaintiff’s Complaint requests that the Court dismiss 16 all of the criminal charges against him based on a violation of the speedy trial act, effectively 17 vacating his conviction. (Id. 2:15–23). However, the Report and Recommendation finds that 18 this form of relief cannot be obtained in a suit brought under § 1983. (Id. 3:17–20). Therefore, 19 the Report and Recommendation concludes that this case should be dismissed, but with leave to 20 refile as a writ of habeas corpus under 28 U.S.C. § 2254, because such a writ is the exclusive 21 remedy for a state prisoner who challenges the fact or duration of his confinement. (Id. 2:27– 22 3:3, 3:17–20). 23 A party may file specific written objections to the findings and recommendations of a 24 United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); 25 D. Nev. R. IB 3-2. Upon the filing of such objections, the Court must make a de novo 1 determination of those portions to which objections are made. Id. The Court may accept, reject, 2 or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 3 28 U.S.C. § 636(b)(1); D. Nev. R. IB 3-2(b). Where a party fails to object, however, the Court 4 is not required to conduct “any review at all . . . of any issue that is not the subject of an 5 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (citing 28 U.S.C. § 636(b)(1)). Indeed, 6 the Ninth Circuit has recognized that a district court is not required to review a magistrate 7 judge’s report and recommendation where no objections have been filed. See, e.g., United 8 States v. Reyna–Tapia, 328 F.3d 1114, 1122 (9th Cir. 2003). 9 Here, Plaintiff filed an objection to the Report and Recommendation claiming that a writ 10 of habeas corpus is not the proper vehicle for his claims because he is challenging his 11 conviction, not his sentence. (Obj. at 1, ECF No. 5). However, because habeas, and not § 1983, 12 is the proper vehicle through which to challenge a conviction, the Court agrees with the 13 Magistrate Judge’s recommendation that this case should be dismissed, with the opportunity to 14 be refiled under 28 U.S.C. § 2254. See, e.g. Dominguez v. Kernan, 906 F.3d 1127, 1137 (9th 15 Cir. 2018) (recognizing that a state prisoner may challenge his conviction or sentence under 28 16 U.S.C. § 2254). 17 Accordingly, 18 IT IS HEREBY ORDERED that the Report and Recommendation, (ECF No. 4), is 19 ADOPTED in full. 20 IT IS FURTHER ORDERED that this case is DISMISSED without prejudice. 21 The Clerk is instructed to close the case. 22 Dated this __6__ day of April, 2022. 23 24 ___________________________________ Gloria M. Navarro, District Judge 25 United States District Court