Opinion
Case No. 3:16-cv-00477-MMD-WGC
05-02-2017
DANIEL HARVEY RIGGS, Plaintiff, v. WILLIAM SANDIE, et al., Defendants.
ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE WILLIAM G. COBB
Before the Court is the Report and Recommendation of United States Magistrate Judge William G. Cobb (ECF No. 4) ("R&R" or "Recommendation"), recommending dismissal of Plaintiff's pro se complaint (ECF No. 1). Plaintiff timely filed his objection to the R&R. (ECF No. 5.)
This 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 timely objects to a magistrate judge's report and recommendation, then the court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). In light of Plaintiff's objection, the Court engages in a de novo review to determine whether to adopt Magistrate Judge Cobb's Recommendation.
The Complaint is based on criminal and judicial proceedings against Plaintiff. (ECF No. 1.) The Magistrate Judge recommends that the Court dismiss without prejudice Plaintiff's claims based on double jeopardy, an invalid search that led to his conviction, and the invalidity of the state statutes used to convict him, as such clams must be brought in a petition for writ of habeas corpus under 28 U.S.C. § 2254, after exhausting state administrative remedies. (ECF No. 4.) The Magistrate Judge further recommends that Plaintiff's claims against Judges Deriso, Mancuso and Flanagan be dismissed with prejudice because these judges are entitled to absolute immunity. In his objection, Plaintiff contends that he seeks to "vacate" the state court judgment and hold the judicial officers accountable. (ECF No. 5.) The Court agrees with the Magistrate Judge's recommendation that the proper vehicle for Plaintiff is through a petition for habeas corpus and his claims against the judicial officers involved in his proceedings are precluded because they enjoy absolute immunity from suit. The Court will therefore adopt the Magistrate Judge's Recommendation in full.
It is therefore ordered, adjudged and decreed that the Report and Recommendation of Magistrate Judge William G. Cobb (ECF No. 4) is accepted and adopted in its entirety. Plaintiff's claims based on double jeopardy, an invalid search that led to his conviction, and the invalidity of the state statues used to convict him are dismissed without prejudice. Plaintiff's claims against Judges Deriso, Mancuso and Flanagan are dismissed with prejudice.
The Clerk is instructed to close this case.
DATED THIS 2nd day of May 2017.
/s/_________
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE