Opinion
No. ED CV 15-2112-R (PLA)
11-30-2015
REFUGIO ESCALANTE, Plaintiff, v. MARK RIVAS, aka, MARK RAVIS, Defendant.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
On October 26, 2015, the United States Magistrate Judge issued a Report and Recommendation ("R&R"), recommending that plaintiff's Complaint be dismissed without leave to amend, but without prejudice to allowing plaintiff to raise his claims in a petition for writ of habeas corpus. On November 16, 2015, plaintiff filed Objections to the R&R.
II.
DISCUSSION
Plaintiff objects that his action should not be dismissed because the "defendants conspired to defraud plaintiff of his" constitutional rights. (Objections at 1). Plaintiff contends that his Complaint herein would not invalidate or bring into question his criminal conviction. He argues that, if the Court or a jury found in plaintiff's favor, "the result would be a violation of the plaintiff's due process rights," and that his claims herein "are solely concerned with [the] deprivation of constitutional rights by and through defense counsel and state prosecutors accomplished with conspiracy." (Id. at 2-3). Because, he asserts, he seeks not only monetary damages, but also declaratory relief, he is not precluded by Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), from pursuing his civil rights lawsuit. (Id. at 3). Plaintiff is incorrect. His contention in his civil rights action herein that his defense counsel conspired with the prosecutor to deprive plaintiff of his civil rights in connection with his criminal conviction raises precisely the type of claim that challenges the validity of plaintiff's continued incarceration. Accordingly, plaintiff must raise such claims in a petition for writ of habeas corpus.
Accordingly, after full consideration of the arguments in plaintiff's Objections, the Court concludes that nothing in plaintiff's Objections alters the conclusions reached in the R&R.
III.
CONCLUSION
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, the other records on file herein, the Magistrate Judge's Report and Recommendation, and plaintiff's Objections to the Report and Recommendation. The Court has engaged in a de novo review of those portions of the Report and Recommendation to which objections have been made. The Court accepts the recommendations of the Magistrate Judge.
ACCORDINGLY, IT IS ORDERED:
1. The Report and Recommendation is accepted.
2. Plaintiff's Complaint is dismissed without leave to amend but without prejudice to plaintiff raising his claims in a petition for writ of habeas corpus.
3. Judgment shall be entered dismissing this action.
4. The clerk shall serve this Order on all counsel or parties of record. DATED: November 30, 2015
/s/_________
HONORABLE MANUEL L. REAL
UNITED STATES DISTRICT JUDGE