2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 MICHAEL COTA, Case No. 3:21-cv-00329-MMD-CLB Plaintiff, 7 v. ORDER

8 JOHN MALONE, et al., Defendants. 9 10 I. SUMMARY 11 Pro se Plaintiff Michael Cota, who is incarcerated in the custody of the Nevada 12 Department of Corrections (“NDOC”), submitted a civil rights second amended complaint 13 under

. (ECF No. 6 (“SAC”).) Cota also submitted an application to 14 proceed in forma pauperis. (ECF No. 8.) Before the Court is the Report and 15 Recommendation of United States Magistrate Judge Carla L. Baldwin. (ECF No. 14 16 (“R&R”).) Judge Baldwin’s R&R recommends that Cota’s application to proceed in forma 17 pauperis be granted, the SAC be dismissed without prejudice and without leave to amend, 18 and Cota’s pending motions (ECF Nos. 5, 11, 13) be denied as moot. Shortly after the 19 R&R issued, Cota timely filed an objection to the R&R (ECF No. 17 (“Objection”)) and 20 filed additional motions (ECF Nos. 15, 18, 19). Because the Court agrees with Judge 21 Baldwin—and as further explained below—the Court will overrule Cota’s Objection, adopt 22 the R&R in full, and deny the additional motions as moot. 23 II. BACKGROUND 24 In the SAC, Cota names the following individuals as Defendants: John Malone, 25 Thomas Gregory, Matthew Johnson, Francisco Torres, and John Enos. (ECF No. 6.)1 26 Cota alleges that Defendants Malone, Gregory, and Johnson orchestrated a plan to use 27 Cota’s juvenile records against him in his underlying criminal cases, in violation on NRS 28 1 2 defense attorney, Gregory was the presiding state court judge, and Johnson was the 3 district attorney. (Id. at 37.) Cota alleges that his due process and equal protection rights, 4 and his right against cruel and unusual punishment, were violated when his juvenile 5 records were used without a proper hearing and a court order. (Id. at 5-7.) 6 III. LEGAL STANDARD 7 A. Review of the Magistrate Judge’s Recommendation 8 This Court “may accept, reject, or modify, in whole or in part, the findings or 9 recommendations made by the magistrate judge.”

(b)(1). Where a party 10 timely objects to a magistrate judge’s report and recommendation, then the Court is 11 required to “make a de novo determination of those portions of the [report and 12 recommendation] to which objection is made.”

The Court’s review is thus de novo 13 because Cota filed the Objection. (ECF No. 16.) 14 IV. DISCUSSION 15 Following a de novo review of the R&R and other records in this case, the Court 16 finds good cause to accept and adopt Judge Baldwin’s R&R in full. 17 Judge Baldwin recommends that this Court grant Cota’s application to proceed in 18 forma pauperis, that his pending motions be denied, and that the SAC be dismissed 19 without prejudice and without leave to amend. (ECF No. 14.) In recommending the 20 dismissal of this action, Judge Baldwin found that Cota appears to be challenging the 21 constitutionality of his state court criminal convictions but had not demonstrated, pursuant 22 to Heck v. Humphrey,

(1998), that his conviction or sentence had been 23 invalidated. (Id. at 5.) Additionally, Judge Baldwin found that Defendants Johnson and 24 Gregory have absolute immunity from § 1983 cases, respectively as a state prosecutor 25 and sentencing judge. (Id.) 26 In his Objection, Cota makes the following three arguments: (1) Judge Baldwin 27 incorrectly names Defendants in the R&R; (2) Defendants Gregory and Johnson abused 28 their authority; and (3) Defendant Johnson violated NRS § 62H.030(2) when he illegally 1 || held onto Cota’s juvenile records for years and then used them against Cota in his criminal 2 || case. However, the Court does not find these arguments convincing. 3 None of Cota’s arguments address why the Court should not dismiss this action 4 || pursuant to Heck,

. Nor does Cota argue or demonstrate his criminal 5 || conviction or sentence has been overturned for this action to proceed under § 1983. 6 || Because Cota appears to be challenging the constitutionality of his state court criminal 7 || convictions, the more proper federal remedy is a writ of habeas corpus, rather than a § 8 || 1983 action. See Edwards v. Balisok,

(1997); Heck,

; 9 || Wolf v. McDonnell,

(1974); Preiser v. Rodriguez,

(1973); 10 || Simpson v. Thomas,

(9th Cir. 2008). Moreover, Cota merely states 11 || that Defendants Gregory and Johnson abused their authority but offer no arguments or 12 || evidence as to why absolute immunity from § 1983 cases is not warranted for these 13 || Defendants in this instance. As such, the Court overrules Cota’s Objection and will adopt 14 || the R&R in full. 15 || V. CONCLUSION 16 It is therefore ordered that Plaintiff Michael Cota’s Objection (ECF No. 16) is 17 || overruled. 18 It is further ordered that the Report and Recommendation of Magistrate Judge 19 || Carla L. Baldwin (ECF No. 14) is accepted and adopted in full. 20 It is further ordered that Cota’s application to proceed in forma pauperis (ECF No. 21 || 8) is granted. 22 It is further ordered that Cota’s second amended complaint (ECF No. 6) is 23 || dismissed without prejudice and without leave to amend. 24 It is further ordered that Cota’s pending motions (ECF Nos. 5, 11, 13, 15, 18, 19) 25 || are denied as moot. 26 DATED THIS 27" Day of January 2022. ee er JAGR _ 28 MIRANGAM. DU ———i‘“—;C*w*~*~*~*~S CHIEF UNITED STATES DISTRICT JUDGE