Opinion
3:22-cv-00304-ART-CLB
07-10-2023
GUSTAVO HERNANDEZ, Plaintiff, v. KERRY EARLEY, Defendant.
ORDER
ANNE R. TRAUM, UNITED STATES DISTRICT JUDGE
Pro se Plaintiff Gustavo Hernandez brings this action under 42 U.S.C. § 1983. Before the Court is the Report and Recommendation (“R&R” or “Recommendation”) of United States Magistrate Judge Carla Baldwin (ECF No. 9), recommending that this action be dismissed without prejudice and without leave to amend as Plaintiff challenges the constitutionality of his state court conviction, making a habeas corpus action appropriate and a § 1983 action inappropriate. Plaintiff timely filed an objection. (ECF No. 10.) As explained below, the Court adopts the R&R, and will dismiss this case without prejudice and without leave to amend and deny Plaintiff's application to proceed in forma pauperis as moot.
The 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). Here, Judge Baldwin recommends dismissal of this action without prejudice and without leave to amend because Plaintiff brings challenges to the adequacy of the proceedings in state court, which are proper subjects for a habeas corpus action and not a § 1983 action pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). (ECF No. 9 at 4.) Having reviewed Plaintiff's complaint, the Court agrees with Judge Baldwin. Plaintiff brings three claims of “court negligence” stemming from the alleged failure of the state court to enter his sentence on the docket. (ECF No. 1-1 at 2-5.) This is a challenge to an underlying state court proceeding appropriate for a habeas corpus action.
In Plaintiff's objection, Plaintiff acknowledges that his action was initiated in error and requests leave to amend. (ECF No. 10 at 2.) However, as Judge Baldwin noted, Plaintiff had not been assessed a filing fee in this case. As such, Plaintiff will not be prejudiced by being required to file a proper action.
Having reviewed the R&R and the record in this case, the Court will adopt the R&R in full.
It is therefore ordered that Judge Baldwin's Report and Recommendation (ECF No. 9) is accepted and adopted in full.
It is further ordered that Plaintiff's application to proceed in forma pauperis (ECF No. 1) be denied as moot.
It is further ordered that the Clerk file Plaintiff's complaint (ECF No. 1-1).
It is further ordered that Plaintiff's complaint be dismissed without prejudice and without leave to amend.
The Clerk of Court is directed to administratively close this case.