Ruiz v. State of Nevada

Opinion

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VICTOR RUIZ, Case No. 3:23-cv-00317-ART-CSD

Plaintiff, ORDER ADOPTING REPORT AND v. RECOMMENDATION (ECF NO. 5), DENYING MOTION (ECF NO. 4), AND STATE OF NEVADA, et al., DISMISSING CASE Defendants. Pro se Plaintiff Victor Ruiz, an inmate in the Elko County Jail, brings this action under 42 U.S.C. § 1983 against Defendants State of Nevada and the Elko County Courthouse challenging his confinement and alleging ineffective assistance of counsel. Before the Court is the Report and Recommendation (“R&R”) of United States Magistrate Judge Craig S. Denney (ECF No. 5), recommending dismissal of Mr. Ruiz’s Complaint (ECF No. 1-1) and denial of his Motion for Leave to Proceed in Forma Pauperis (ECF No. 4) as moot because Mr. Ruiz has brought claims that are not cognizable by this Court. Mr. Ruiz had until September 28, 2023 to file an objection to Judge Denney’s R&R. (ECF No. 5 at 2.) As of today, no objection has been filed. For this reason, and as explained below, the Court adopts the R&R, dismisses Mr. Ruiz’s complaint without prejudice, and denies his Motion to Proceed in Forma Pauperis as moot. The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party fails to object to a magistrate judge’s recommendation, the Court is not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1116 (9th Cir. 2003) (“De novo review of the magistrate judges’ findings and recommendations is required if, but only if, one or both parties file objections to the findings and recommendations.”) (emphasis in original); Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (providing that the Court “need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”). Because there is no objection, the Court need not conduct de novo review and is satisfied Judge Denney did not clearly err. Judge Denney recommends dismissal of Mr. Ruiz’s Complaint because this Court has no power to hear his claims. Specifically, Judge Denney notes that (1) a challenge to confinement must be brought as a petition for writ of habeas corpus, after state remedies have been exhausted, and (2) “a Sixth Amendment claim for ineffective assistance of counsel must be raised in a direct appeal, post-conviction . . . and not in an action under section 1983.” (ECF No. 5 at 1.) Judge Denney notified Mr. Ruiz of the above issues on August 7, 2023 and invited Mr. Ruiz to clarify whether Judge Denney had misinterpreted some aspect of his Complaint. (ECF No. 3 at 5.) Mr. Ruiz did not respond. Having reviewed the R&R and the record in this case, the Court is satisfied that Judge Denney did not clearly err and adopts the R&R in full. It is therefore ordered that Judge Denney’s Report and Recommendation (ECF No. 5) is accepted and adopted in full. It is further ordered that Mr. Ruiz’s Complaint (ECF No. 1-1) is dismissed, without prejudice. It is further ordered that Mr. Ruiz’s Motion to Proceed in Forma Pauperis (ECF No. 4) is denied as moot. The Clerk of Court is directed to enter judgment accordingly and close this case. // // 1 Dated this 12 day of January 2024. Ans lose UNITED STATES DISTRICT JUDGE