Opinion
Civil No. 09-1250-RJB/JRC.
October 23, 2009
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter comes before the Court on the Report and Recommendation of U.S. Magistrate Judge J. Richard Creatura. Dkt. 8. The Court has considered the Report and Recommendation, objections, if any, and the record herein.
The Report and Recommendation discusses the facts and law at issue here. Dkt. 8. The plaintiff has raised a 42 U.S.C. § 1983 civil rights action, alleging that the diagnosis he received as part of his civil commitment proceeding does not exist. The Report and Recommendation states that the plaintiff is thus collaterally challenging his civil commitment, and therefore that the plaintiff must proceed in a habeas corpus action rather than a civil rights action. However, the Report and Recommendation should also include authority stating that the analysis performed by the court applies to individuals who are in civil commitment as well as incarceration. The Report and Recommendation should be adopted with the following authority included:
Heck v. Humphrey applies to persons detained as sexually violent predators who have access to habeas relief. Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1140 (9th Cir. 2005). The Court hereby ORDERS:
1) The Report and Recommendation (Dkt. 8) is ADOPTED;
2) The plaintiff's action is DISMISSED without prejudice; and
3) The Clerk is directed to send copies of this Order to all attorneys of record and to the Hon. J. Richard Creatura.