Posey v. Perez

Opinion

1 DISTRICT OF NEVADA 3

4 Anthony Posey, Case No.: 2:24-cv-01675-CDS-DJA

5 Plaintiff Order Overruling Objections in Part and Adopting in Part the Magistrate 6 v. Judge’s Report and Recommendation

7 Officer C. Perez, et al., [ECF Nos. 7, 9] 8 Defendants

9 10 Anthony Posey, an inmate in the custody of the Nevada Department of Corrections, 11 brings this action under 42 U.S.C. § 1983 against attorney Todd Leventhal, Instagram.com, the 12 State of Nevada, Chief of the Las Vegas Metropolitan Police Department, and several officers. 13 Compl., ECF No. 5. Magistrate Judge Daniel J. Albregts screened Posey’s complaint and issued a 14 report and recommendation (R&R) that I dismiss the complaint without leave to amend. R&R, 15 ECF No. 7. Judge Albregts determined that Posey is essentially challenging the constitutionality 16 of his state court criminal conviction. Id. at 4. Because Posey has not demonstrated that the 17 conviction has been overturned, Judge Albregts found that he may not proceed with an action 18 under § 1983 because his claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). Id. at 4–5. In 19 objecting to Judge Albregts’s finding, Posey argues, in part, that his claims are not barred by the 20 Heck doctrine because the charges giving rise to his claims were dismissed in state court. Obj., 21 ECF No. 91 at 3–4. After conducting a de novo review, I sustain in part and overrule in part 22 Posey’s objection. 23

24 1 Posey’s first and second objections set forth the legal standard for service under Federal Rule of Civil Procedure 4 and present the elements of 42 U.S.C. § 1983. ECF No. 9 at 3–4. The only proper purpose of 25 an objection to an R&R is to identify a specific defect of law, fact, or logic in the magistrate judge’s analysis. Because these objections do not specifically challenge Judge Albregts’s findings, I decline to 26 review them de novo. Fed. R. Civ. P. 72(b)(2), (3) (requiring an objecting party to file “specific written objections” and only requiring the district judge to review decisions of the magistrate judge that have been “properly objected to.”). 1 I. Legal standard 2 “A judge of the court shall make a de novo determination of those portions of the report 3 or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 4 636(b)(1). The court may “accept, reject, or modify, in whole or in part, the findings or 5 recommendations made by the magistrate judge.” Id. “The statute makes it clear that the district 6 judge must review the magistrate judge’s findings and recommendations de novo if objection is 7 made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 8 A magistrate judge’s order should only be set aside if it is clearly erroneous or contrary to 9 law. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). A magistrate judge’s order is “clearly 10 erroneous” if the court has “a definite and firm conviction that a mistake has been committed.” 11 United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Burdick v. Comm’r IRS, 979 F.2d 1369, 1370 12 (9th Cir. 1992). “An order is contrary to law when it fails to apply or misapplies relevant 13 statutes, case law[,] or rules of procedure.” UnitedHealth Grp., Inc. v. United Healthcare, Inc., 2014 WL 14 4635882, at *1 (D. Nev. Sept. 16, 2014). 15 II. Discussion 16 In his complaint, Posey brings claims related to an incident on December 25, 2020 (ECF 17 No. 5 at 5–17), an arrest on May 14, 2021 (id. at 18–26), and allegations of ineffective assistance of 18 counsel leading to his conviction (id. at 27–32). After screening the complaint, Judge Albregts 19 recommends dismissing Posey’s claims without leave to amend because the complaint “must be 20 dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been 21 invalidated.” ECF No. 7 at 4 (quoting Heck, 512 U.S. at 487). In Heck, the Supreme Court held that 22 a plaintiff who was convicted of a crime is barred from bringing civil rights claims if a judgment 23 in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence. Heck, 24 512 U.S. at 487. However, the Court added that “if the district court determines that the 25 plaintiff’s action even if successful, will not demonstrate the invalidity of any outstanding 26 1 criminal judgment against the plaintiff, the action should [] proceed, in the absence of some 2 other bar to the suit.” Id. (emphasis in original) (cleaned up). 3 A. Posey’s objections 4 Posey objects to the R&R’s finding that his claims are barred by the Heck doctrine 5 arguing that: (1) the state indictment was dismissed; (2) his appeals to the Supreme Court of 6 Nevada, and his pending petitions for writ of habeas corpus, could reverse his conviction; (3) he 7 will eventually be released from custody; (4) the “split verdict” renders Heck inapposite; and (5) 8 the application of Heck causes prejudice. ECF No. 9 at 3–4. 9 10 Posey objects to the dismissal of his claims under Heck because “the dismissal of the state 11 indictment in 5/22/2022 was a termination in his favor.” Id. at 3; Pl.’s Ex. 1, ECF No. 9 at 7. 12 A court can take judicial notice of material that is referenced extensively or relied upon by the 13 complaint, as well as matters in the public record. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 14 2006); see also Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002) (courts may take 15 judicial notice of documents on file in federal or state courts). As the disposition of the criminal 16 case forms the basis of Posey’s objection and is a public record, I take judicial notice of State of 17 Nevada vs. Anthony Posey, Case No. C-21-355585-1. ECF No. 9 at 3. The public docket of criminal 18 case number C-21-355585-1 reveals that the case was dismissed on August 9, 2021.2 The absence 19 of a criminal judgment here renders Heck inapplicable because the plain language of the decision 20 requires the existence of a conviction for a § 1983 suit to be barred. Heck, 512 U.S. at 487. 21 Therefore, I find that Judge Albregts’s recommendation to dismiss claim one was clearly 22 erroneous as it should not have been dismissed under the Heck doctrine. I thus sustain the 23 objection and reject that portion of the report and recommendation. 24 25 2 Eighth Judicial District Court, State of Nevada vs. Anthony Posey, Case No. C-21-355585-1. The case was 26 statistically closed on May 22, 2022. https://www.clarkcountycourts.us/Portal/Home/WorkspaceMode?p=0 (last accessed on November 25, 2024). 1 However, taking judicial notice of State of Nevada vs. Anthony Posey, Case No. C-21-356678- 2 1, which form the bases of claims two and three, the public docket shows that Posey was 3 represented by attorney Todd Leventhal, entered a guilty plea, and a judgment of conviction was 4 entered on September 20, 2021.3 A plain reading of Posey’s claims demonstrate that they are 5 based upon allegations that he was wrongfully arrested and then coerced into pleading guilty, 6 which is an indirect challenge attacking the validity of his criminal judgment. A judgment in 7 Posey’s favor on these claims would imply the invalidity of his sentence—and Posey has not 8 demonstrated that his conviction or sentence has been reversed on direct appeal, expunged by 9 executive order, declared invalid by a state tribunal authorized to make such determination, or 10 called into question by a federal court’s issuance of a writ of habeas corpus. So I overrule Posey’s 11 objection and accept Judge Albregts’s finding that the Heck doctrine is applicable to these 12 claims. 13 14 Posey asserts that his pending motions before the Supreme Court of Nevada and his 15 petitions for writ of habeas corpus could reverse his conviction. ECF No. 9 at 4. This argument 16 is pure speculation. Posey has failed to provide any evidence that his conviction was “reversed on 17 direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to 18 make such a determination, or called into question by a federal court’s issuance of a writ of 19 habeas corpus.” Heck, 512 U.S. at 487. Under Federal Rule of Civil Procedure 72(b)(3), I am 20 permitted to overrule the objection without further analysis, which I do here. 21 22 Here, Posey contends that he “will eventually be released from custody or PED 5/11/25”. 23 ECF No. 9 at 4. This objection does not require de novo review. “While the Ninth Circuit has 24 3 Las Vegas Justice Court, State of Nevada vs. Posey, Anthony, Case No. 21-CR-023005. DA Request for 25 Prosecution 05/14/2021. https://lvjcpa.clarkcountynv.gov/Anonymous/CaseDetail.aspx?CaseID=13494383 (last accessed on November 25, 2024); Eighth Judicial District Court, State of Nevada vs. Anthony Posey, Case 26 No. C- 21-356678-1. https://www.clarkcountycourts.us/Portal/Home/WorkspaceMode?p=0#top (last accessed on November 25, 2024). 1 not yet considered the effect of generalized, blanket, or conclusory objections, several other 2 circuits have held that they do not trigger de novo review.” Rew v. Borders, 2019 U.S. Dist. LEXIS 3 98110, at *2–3 (S.D. Cal. June 10, 2019) (collecting cases). Moreover, any party wishing to object 4 to a magistrate judge’s findings and recommendations must file specific written objections with 5 supporting points and authorities. Local Rule IB 3-2(a). Posey fails to cite supporting points and 6 authorities, so this objection is overruled. 7 8 In this portion of Posey’s objection, he argues that “the ‘split verdict’ renders Heck 9 inapposite, although a ‘split verdict’ can render the Heck bar inapplicable in some 10 circumstances.” ECF No. 9 at 4. Posey cites Dunham v. City of New York, 295 F. Supp. 3d 319 11 (S.D.N.Y. 2018) in support of this argument. Id. Although a ‘split verdict’ can render the Heck bar 12 inapplicable in some circumstances, those circumstances, nor circumstances like those in the 13 Dunham case, are applicable here. And unlike Dunham, Posey’s criminal proceeding4 was not 14 terminated in his favor. Accordingly, I overrule this objection. 15 16 Posey’s last objection merely asserts that the application of Heck causes prejudice. ECF 17 No. 9 at 4. As previously noted, this objection does not require de novo review. Any party 18 wishing to object to a magistrate judge’s findings and recommendations must file specific 19 written objections with supporting points and authorities. Local Rule IB 3-2(a). “While the 20 Ninth Circuit has not yet considered the effect of generalized, blanket, or conclusory objections, 21 several other circuits have held that they do not trigger de novo review.” Rew, 2019 U.S. Dist. 22 LEXIS 98110. Posey fails to cite supporting points and authorities, so this objection is overruled 23 without de novo review. 24 25 26 4 See State of Nevada vs. Anthony Posey, Case No. C-21-356678-1. 1/1. Conclusion 2 IT IS HERBY ORDERED that Posey’s objection [ECF No. 9] is SUSTAINED in part OVERRULED in part, therefore the magistrate judge’s report and recommendation [ECF 4|| No. 7] is ADOPTED in part. The magistrate judge is directed to rescreen claim one of the 5]| original complaint under 28 U.S.C. § 1915(e) and issue an amended screening order in the normal course. /, ) 7 Dated: December 3, 2024 LZ □

Cristina D. Silva 9 Uinged States District Judge 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26