1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 FRANCISCO VIDAL, ) 4 ) Plaintiff, ) Case No.: 2:19-cv-01368-GMN-VCF 5 vs. ) 6 ) ORDER STATE OF NEVADA, et al., ) 7 ) Defendants. ) 8 ) 9 10 Pending before the Court is the Report and Recommendation (“Report”) of the 11 Honorable United States Magistrate Judge Cam Ferenbach, (ECF No. 12), which states that pro 12 se Plaintiff Francisco Vidal’s (“Plaintiff”) Amended Complaint, (ECF No. 11), should be 13 dismissed for failure to state a plausible claim for relief and judgment should be entered. 14 Plaintiff filed an Objection, (ECF No. 13), to the Report. 15 A party may file specific written objections to the findings and recommendations of a 16 United States Magistrate Judge made pursuant to Local Rule IB 1-4.

(b)(1)(B); 17 D. Nev. R. IB 3-2. Upon the filing of such objections, the Court must make a de novo 18 determination of those portions to which objections are made.

The Court may accept, reject, 19 or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 20

(b)(1); D. Nev. IB 3-2(b). 21 Here, the Report makes clear that the Amended Complaint fails to articulate a claim 22 against Defendants. To state a claim under § 1983, a plaintiff must plead that the named 23 defendant (1) acted “under color of state law” and (2) “deprived the plaintiff of rights secured 24 by the Constitution or federal statutes.” Gibson v. U.S.,

, 1338 (9th Cir. 1986). 25 However, the Supreme Court has held that a prisoner in custody cannot use a § 1983 action to 1 challenge the fact or duration of his confinement, but instead must seek federal habeas corpus 2 relief or the appropriate state relief. Wilkinson v. Dotson,

(2005). 3 Plaintiff’s Objection takes issue with one sentence in the Report which states that 4 “Plaintiff’s claims challenge the invalidity of his confinement due to the revocation of his 5 parole, and thus he fails to state a § 1983 claim.” (R&R at 3, ECF No. 12). Plaintiff states that 6 his parole was not revoked, that the Board quashed his retake warrant, and reinstated his parole 7 after “P&P dismissed violations.” (Obj. at 3, ECF No. 13). He further states that he was in 8 custody due to a retake warrant being issued, after defendants maliciously prosecuted him and 9 found him guilty of violations without giving him due process at his preliminary inquiry 10 hearing. (Id.). Plaintiff further contends that after the hearing he was taken back to his cell and 11 that defendant decided to continue to find him guilty of all violations without his presence. 12 (Id.). Plaintiff insists that he is not in custody due to defendants’ actions. (Id. at 8). He is 13 “simply waiting to be processed & released to [his] new address.” (Id.). 14 As explained in the Report, a § 1983 claim cannot be used to vacate convictions, but it 15 can be used to recover damages for allegedly unconstitutional imprisonment. Heck v. 16 Humphrey,

(1994) (emphasis added). However, the “plaintiff must prove 17 that the conviction or sentence has been reversed on direct appeal, expunged by executive 18 order, declared invalid by a state tribunal authorized to make such determination, or called into 19 question by a federal courts issuance of a writ of habeas corpus.”

at 486–487. Plaintiff asks 20 for monetary damages measured by the time he has been incarcerated, but Plaintiff gives no 21 indication in his Amended Complaint that his conviction has been challenged or overturned by 22 any court. Plaintiff fails to articulate a claim against Defendants. Moreover, Plaintiff’s 23 Objection does not address any of the legal issues identified in the Report. 24 Based on the foregoing, the Court finds Plaintiff’s Amended Complaint fails to state a 25 § 1983 against Defendants. The Court further finds that amendment would be futile and 1 therefore dismisses without leave to amend. Accordingly, Plaintiff’s Amended Complaint is 2 dismissed. 3 I. CONCLUSION 4 IT IS HEREBY ORDERED that the Report and Recommendation, (ECF No. 12), is 5 ACCEPTED and ADOPTED in full. Plaintiff’s Amended Complaint, (ECF No. 11), is 6 DISMISSED. 7 IT IS FURTHER ORDERED that all currently pending motions are DENIED as 8 moot. The Clerk of the Court shall enter judgment accordingly and close the case. 9 DATED this 3__1_ day of May, 2020. 10 11 ___________________________________ Gloria M. Navarro, District Judge 12 United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25