Skinner v. Reed

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 RODERICK SKINNER, Case No. 3:23-cv-00098-MMD-CSD

7 Plaintiff, ORDER v. 8 EDWARD T. REED, et al., 9 Defendants. 10 11 Pro se Plaintiff Roderick Skinner, who is incarcerated at Northern Nevada 12 Correctional Center, brings this action against Defendants Edward T. Reed, Esq. and 13 Edward T. Reed, PLLC under 42 U.S.C. § 1983. Before the Court is United States 14 Magistrate Judge Craig S. Denney’s Report and Recommendation (“R&R”) (ECF No. 9), 15 recommending that the Court dismiss Skinner’s Complaint (ECF No. 1-1) with prejudice. 16 Skinner timely filed an objection (ECF No. 10 (“Objection”)) to the R&R. As further 17 explained below, the Court overrules in part and sustains in part Skinner’s Objection and 18 adopts the R&R but dismisses Skinner’s Complaint without prejudice. 19 This Court “may accept, reject, or modify, in whole or in part, the findings or 20 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 21 timely objects to a magistrate judge’s report and recommendation, the Court is required 22 to “make a de novo determination of those portions of the [report and recommendation] 23 to which objection is made.” Id. The Court’s review is thus de novo because Skinner filed 24 his Objection. (ECF No. 10.)1 25 /// 26 /// 27

28 1The Court incorporates by reference and adopts Judge Denney’s recitation of Skinner’s allegations in the R&R. (ECF No. 9 at 4-5.) 2 Fourteenth Amendment ineffective assistance of counsel claim, he believes his § 1983 3 claim should be cognizable against Reed in his personal capacity. (ECF No. 10 at 4.) 4 Despite Skinner’s belief, that is not the law. To state a claim under § 1983, a plaintiff “must 5 allege the violation of a right secured by the Constitution and the laws of the United States, 6 and must show that the alleged deprivation was committed by a person acting under color 7 of law.” West v. Atkins, 487 U.S. 42, 48-49 (1988). But “an attorney, whether retained or 8 appointed, does not act ‘under color of’ state law” for the purposes of a civil rights claim. 9 Szijarto v. Legeman, 466 F.2d 864, 864 (9th Cir. 1972). Skinner thus cannot assert a § 10 1983 claim against his former attorney. 11 Skinner’s claims, as stated, also do not produce a cognizable habeas action 12 because even Skinner states he did not bring this case to invalidate his state court 13 conviction or challenge the length of his confinement—but rather seeks only monetary 14 damages. (ECF Nos. 1-1 at 5, 8 at 2.) See also Preiser v. Rodriguez, 411 U.S. 475, 488- 15 89, 500 (1973) (stating that challenging a “fact or [the] duration of . . . physical 16 imprisonment” falls under the “core of habeas corpus”); Heck v. Humphrey, 512 U.S. 477, 17 481 (1994). If Skinner does wish to invalidate his conviction or shorten his confinement, 18 he must first exhaust all available state court remedies before filing a federal petition for 19 the writ of habeas corpus. See 28 U.S.C. § 2254(b)(1). Judge Denney stated as much in 20 the R&R, and in a prior order. (ECF No. 9 at 5.) The Court agrees with Judge Denney 21 and finds that Skinner’s Complaint must be dismissed. 22 But Skinner also specifically requests in his Objection that, if the Court dismisses 23 his claims, they be dismissed without prejudice. (ECF No. 10 at 2-3.) The Court will 24 sustain Skinner’s Objection to that limited extent. As dismissal with prejudice is not 25 appropriate unless it is “clear” that “the complaint could not be saved by amendment,” 26 and Skinner has not previously been granted leave to amend his Complaint, Skinner’s 27

28 2As to the remaining portions of the R&R that Skinner did not object to, the Court 1 || Complaint is dismissed without prejudice. Eminence Capital, LLC v. Aspeon, Inc., 316 2 || F.3d 1048, 1052 (9th Cir. 2003); see also Fed. R. Civ. P. 15(a) (“The court should freely 3 || give leave [to amend] when justice so requires.”). 4 It is therefore ordered that Skinner’s objection (ECF No. 10) to Judge Denney’s 5 || Report and Recommendation (ECF No. 9) is overruled, except for his request to dismiss 6 || the case without prejudice. 7 It is further ordered that Judge Denney’s Report and Recommendation (ECF No. 8 || 9) is adopted in part, but the Complaint is dismissed without prejudice. 9 The Clerk of Court is directed to file the Complaint (ECF No. 1-1). 10 It is further ordered that the Complaint is dismissed, in its entirety, without 11 || prejudice. 12 It is further ordered that Skinner's IFP application (ECF No. 7) is granted; however, 13 || Skinner is required to pay, through the Nevada Department of Corrections, an_ initial 14 || partial filing fee in the amount of $48.01 by October 16, 2023. Thereafter, whenever his 15 || prison account exceeds $10, he is required to make monthly payments in the amount of 16 || 20 percent of the preceding month’s income credited to his account even if the action is 17 || dismissed or otherwise unsuccessful. 18 The Clerk is directed to send a copy of this order to the attention of Chief of Inmate 19 || Services for the Nevada Department of Corrections, P.O. Box 7011, Carson City, Nevada 20 || 89702. 21 It is further ordered that, if Skinner wishes to file an amended complaint, he must 22 || do so by October 16, 2023. 23 It is further ordered that if Skinner does not file an amended complaint alleging 24 || cognizable claims by October 16, 2023, the Court will dismiss this case with prejudice. 25 DATED THIS 15" Day of September 2023.

27 MIRANDA M. DU 28 CHIEF UNITED STATES DISTRICT JUDGE