1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 DANIEL GEORGE GRAVELLE, Case No. 3:19-cv-00141-MMD-CLB

7 Plaintiff, ORDER ACCEPTING AND ADOPTING v. REPORT AND RECOMMENDATION 8 OF MAGISTRATE JUDGE BRIAN GREEN, et al., CARLA BALDWIN 9 Defendants. 10 11 Before the Court is the Report and Recommendation of United States Magistrate 12 Judge Carla Baldwin (ECF No. 4) (“R&R” or “Recommendation) relating to Plaintiff’s 13 application to proceed in forma pauperis (“IFP Application”) (ECF No. 1) and pro se 14 Complaint (ECF No. 1-1). Judge Baldwin recommends granting the IFP Application and 15 dismissing Plaintiff’s claim without prejudice and without leave to amend. Plaintiff filed an 16 objection (“Objection”). (ECF No. 5.) The Court agrees with Judge Baldwin and will 17 overrule Plaintiff’s Objection. 18 This Court “may accept, reject, or modify, in whole or in part, the findings or 19 recommendations made by the magistrate judge.”

(b)(1). Where a party 20 timely objects to a magistrate judge’s report and recommendation, the Court is required 21 to “make a de novo determination of those portions of the [report and recommendation] 22 to which objection is made.”

(b)(1). 23 Plaintiff asserts a claim under

against Defendants Brian Green 24 and Elko County. Plaintiff alleges single claim for ineffective assistance of counsel based 25 on Green’s failure to file a direct appeal in Plaintiff’s criminal case. (ECF No. 1-1 at 3-4.) 26 Judge Baldwin found that Plaintiff’s claim is barred under Heck v. Humphrey, 512

(1944), and that Plaintiff further cannot state a § 1983 claim against Green 28 1 who, as a public defender, is not a state actor.1 (ECF No. 4 at 5-6.) The Court agrees 2 that Plaintiff’s claim is Heck barred. In Heck v. Humphrey, the Supreme Court held that 3 “in order to recover damages for allegedly unconstitutional conviction or imprisonment, 4 or for other harm caused by actions whose unlawfulness would render a conviction or 5 sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been 6 reversed on direct appeal, expunged by executive order, declared invalid by a state 7 tribunal authorized to make such determination, or called into question by a federal 8 court’s issuance of a writ of habeas corpus[.]” 512 U.S. at 486-87 (footnote omitted). 9 Here, Plaintiff’s claim challenges the validity of his conviction by asserting that his 10 criminal defense counsel failed to pursue a direct appeal. Plaintiff’s Objection reiterates 11 that he is trying to challenge his conviction.2 (ECF No. 5 at 1.) 12 It is therefore ordered, adjudged and decreed that the Report and 13 Recommendation of Magistrate Judge Carla Baldwin (ECF No. 4) is accepted and 14 adopted in its entirety. 15 It is further ordered that Plaintiff’s application to proceed in form pauperis (ECF 16 No. 1) is granted; Plaintiff will not be required to pay an initial fee. 17 It is further ordered that the Clerk of Court file the Complaint (ECF No. 1-1). 18 It is further ordered that the Complaint is dismissed without prejudice and without 19 leave to amend.

20 1Plaintiff’s Objection asserts that Green was not a public defender but was hired 21 “by the State of Nevada in the County of Elko to represent” Plaintiff. (ECF No. 5 at 1-2.) However, the point made in the R&R is that Green was Plaintiff’s attorney in his criminal 22 case and was not “acting under color of law” for purposes of § 1983. See West v. Atkins,

(1988) (a plaintiff asserting a claim under § 1983 “must allege the 23 violation of a right secured by the Constitution and the laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of 24 law.”).

25 2Plaintiff expresses frustration that he has not been able to pursue his petition for habeas corpus in the state court. (ECF No. 5 at 2.) However, even if Plaintiff has been 26 unfairly denied state habeas corpus relief, he cannot pursue a claim for constitutional violations under § 1983 when his conviction has not been invalidated. 27 1 The Clerk of Court is directed to enter judgment accordingly and close this case.

2 DATED THIS 7th day of January 2020.

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5 MIRANDA M. DU CHIEF 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