Ruiz v. State of Nevada ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 VICTOR RUIZ, Case No. 3:23-cv-00317-ART-CSD 7 Plaintiff, ORDER ADOPTING REPORT AND v. RECOMMENDATION (ECF NO. 5), 8 DENYING MOTION (ECF NO. 4), AND STATE OF NEVADA, et al., DISMISSING CASE 9 Defendants. 10 11 Pro se Plaintiff Victor Ruiz, an inmate in the Elko County Jail, brings this 12 action under 42 U.S.C. § 1983 against Defendants State of Nevada and the Elko 13 County Courthouse challenging his confinement and alleging ineffective 14 assistance of counsel. Before the Court is the Report and Recommendation 15 (“R&R”) of United States Magistrate Judge Craig S. Denney (ECF No. 5), 16 recommending dismissal of Mr. Ruiz’s Complaint (ECF No. 1-1) and denial of his 17 Motion for Leave to Proceed in Forma Pauperis (ECF No. 4) as moot because Mr. 18 Ruiz has brought claims that are not cognizable by this Court. Mr. Ruiz had until 19 September 28, 2023 to file an objection to Judge Denney’s R&R. (ECF No. 5 at 20 2.) As of today, no objection has been filed. For this reason, and as explained 21 below, the Court adopts the R&R, dismisses Mr. Ruiz’s complaint without 22 prejudice, and denies his Motion to Proceed in Forma Pauperis as moot. 23 The Court “may accept, reject, or modify, in whole or in part, the findings 24 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where 25 a party fails to object to a magistrate judge’s recommendation, the Court is not 26 required to conduct “any review at all . . . of any issue that is not the subject of 27 an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also United States v. 28 Reyna-Tapia, 328 F.3d 1114, 1116 (9th Cir. 2003) (“De novo review of the 1 magistrate judges’ findings and recommendations is required if, but only if, one 2 or both parties file objections to the findings and recommendations.”) (emphasis 3 in original); Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (providing that 4 the Court “need only satisfy itself that there is no clear error on the face of the 5 record in order to accept the recommendation.”). 6 Because there is no objection, the Court need not conduct de novo review 7 and is satisfied Judge Denney did not clearly err. Judge Denney recommends 8 dismissal of Mr. Ruiz’s Complaint because this Court has no power to hear his 9 claims. Specifically, Judge Denney notes that (1) a challenge to confinement 10 must be brought as a petition for writ of habeas corpus, after state remedies 11 have been exhausted, and (2) “a Sixth Amendment claim for ineffective 12 assistance of counsel must be raised in a direct appeal, post-conviction . . . and 13 not in an action under section 1983.” (ECF No. 5 at 1.) Judge Denney notified 14 Mr. Ruiz of the above issues on August 7, 2023 and invited Mr. Ruiz to clarify 15 whether Judge Denney had misinterpreted some aspect of his Complaint. (ECF 16 No. 3 at 5.) Mr. Ruiz did not respond. 17 Having reviewed the R&R and the record in this case, the Court is satisfied 18 that Judge Denney did not clearly err and adopts the R&R in full. 19 It is therefore ordered that Judge Denney’s Report and Recommendation 20 (ECF No. 5) is accepted and adopted in full. 21 It is further ordered that Mr. Ruiz’s Complaint (ECF No. 1-1) is dismissed, 22 without prejudice. 23 It is further ordered that Mr. Ruiz’s Motion to Proceed in Forma Pauperis 24 (ECF No. 4) is denied as moot. 25 The Clerk of Court is directed to enter judgment accordingly and close this 26 case. 27 // 28 // 1 Dated this 12 day of January 2024. 2 3 Ans lose 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28