2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 ANTHONY KENNETH ANDERSON, Case No. 2:22-cv-00127-ART-BNW

7 Plaintiff, ORDER v. 8 STATE OF NEVADA, et al., 9 Defendants. 10 11 I. SUMMARY 12 Pro se Plaintiff Anthony Kenneth Anderson, who is an inmate in the custody 13 of the Nevada Department of Corrections (“NDOC”), brings this action under 42

against the State of Nevada and Charles Thompson. (ECF No. 14). 15 Before the Court is a Report and Recommendation (“R&R”) of United States 16 Magistrate Judge Brenda Weksler (ECF No. 25), recommending the Court dismiss 17 Anderson’s Second Amended Complaint (ECF No. 14) with prejudice, deny 18 Anderson’s Motion for Preliminary Injunction (ECF No. 12), and deny Anderson’s 19 remaining miscellaneous motions (ECF Nos. 16, 19, 20, 21, and 22) as moot. 20 Anderson filed an objection to the R&R. (ECF No. 28). The Court fully agrees with 21 Judge Weksler’s analysis. Accordingly, the Court will deny Anderson’s motions 22 and dismiss the case with prejudice. 23 II. BACKGROUND 24 The Court incorporates by reference Judge Weksler’s recitation of Plaintiff’s 25 allegations in the second amended complaint, or “SAC,” provided in the R&R, 26 which the Court adopts. (ECF No. 25 at 1-3). 27 III. LEGAL STANDARD 28 This Court “may accept, reject, or modify, in whole or in part, the findings 2 a party timely objects to a magistrate judge’s report and recommendation, then 3 the Court is required to “make a de novo determination of those portions of the 4 [report and recommendation] to which objection is made.”

The Court’s review 5 is thus de novo because Plaintiff filed his Objection. (ECF No. 28). 6 IV. DISCUSSION 7 Anderson makes twelve arguments in his Objection, but—like the 8 arguments in his Second Amended Complaint—all boil down to a common 9 assertion: Anderson argues that he is entitled to monetary relief and a “personal 10 injury injunction” releasing him from prison because, he believes, Nevada state 11 Judge Charles Thompson was not a judge at the time he signed Anderson’s 12 judgment of conviction and, therefore Anderson’s imprisonment is 13 unconstitutional. (ECF No. 14 at 23; ECF No. 28 at 1-2, 4-6, 8, 10, 15). Put 14 another way, Anderson argues that—because Judge Thompson signed his 15 judgment of conviction, rather than Judge Donald Mosley—Anderson should be 16 released from prison. (ECF No. 28 at 7, 10). The Court takes judicial notice of the 17 fact that Charles Thompson was a judge at the Nevada Eighth Judicial District 18 Court when Mr. Anderson’s judgment of conviction was signed. Anderson’s 19 Objection is moot, however, as his complaint is fatally defective. In this action 20 arising under § 1983, the State of Nevada is not a proper defendant, Judge 21 Thompson is immune from prosecution, and Supreme Court precedent bars the 22 relief Anderson seeks. Therefore, this Court adopts Judge Weksler’s Report and 23 Recommendation (ECF No. 25) in full, dismisses Anderson’s Second Amended 24 Complaint with prejudice, denies his Motion for a Preliminary Injunction (ECF 25 No. 12), and denies his remaining motions as moot. 26 A. The State of Nevada Is Not A Proper Defendant 27 Here, the State of Nevada is not a proper defendant for two reasons. First, 28 § 1983 actions require plaintiffs plead two elements: (1) a constitutional violation 2 State Police,

(1989). States are not “persons” for purposes of § 3 1983, so a State cannot be named a defendant in a § 1983 action. See 4 Arizonans for Off. Eng. v. Arizona,

(1997) (citing Will,

71). States are also immune from damages suits based in the Eleventh 6 Amendment. See Brooks v. Sulphur Springs Valley Elec. Coop.,

, 7 1053 (9th Cir. 1991) (observing that absent a state’s consent, the Eleventh 8 Amendment prohibits federal courts from hearing suits brought against a state). 9 Because the State of Nevada is not a “person” under § 1983 and has not waived 10 its Eleventh Amendment immunity from suit, see NRS § 41.031(3) (“[Nevada] does 11 not waive immunity conferred by Eleventh Amendment.”), Nevada cannot be sued 12 as a defendant in federal court. 13 B. Judge Charles Thompson Is Immune From Suit Under § 1983 14 Judge Charles Thompson is also immune from suit because “Judges are 15 absolutely immune from damage actions for judicial acts taken within the 16 jurisdiction of their courts.” Schucker v. Rockwood,

(9th Cir. 17 1988) (per curiam) (citations omitted). Despite Anderson’s arguments to the 18 contrary, here Judge Charles Thompson was a judge at the Nevada Eighth 19 Judicial District Court when Anderson’s judgment of conviction was signed. The 20 alleged failure by the Eighth Judicial District’s public information officer to 21 produce a copy of Judge Thompson’s certificate of election does not prove Judge 22 Thompson is not a lawfully elected judge. (ECF No. 28 at 15-16). Because signing 23 a judgment of conviction is an act “normally performed by a judge,” Judge 24 Thompson is absolutely immune from suits related to this action. See Stump v. 25 Sparkman,

(1978). Anderson’s allegations that Judge 26 Thompson acted fraudulently (ECF No. 28 at 9) do not change the analysis 27 because judges retain their immunity even when they are accused of acting 28 2 immunity is not overcome by allegations of bad faith or malice. . . .”). 3 C. The Relief Anderson Seeks is Not Available Under § 1983 4 Anderson’s request for release from custody is not an available from of relief 5 under § 1983. Specifically, in his Second Amended Complaint, Anderson prays 6 for damages and immediate release from NDOC custody (ECF No. 14 at 23), which 7 he requests as a form of “personal injury injunction.” (ECF No. 28 at 4-6). Release 8 from custody is not available in a § 1983 action. A writ of habeas corpus is the 9 only way to bring a claim challenging the fact of conviction or duration of 10 confinement. Preiser v. Rodriguez,

(1973). (“[W]e hold today 11 that when a state prisoner is challenging the very fact or duration of his physical 12 imprisonment. . . his sole federal remedy is a writ of habeas corpus.”). Such relief 13 (vacating a conviction or a speedier release from prison) cannot be pursed 14 through a § 1983 action. See Heck v. Humphrey,

, 483–87 (1994). 15 Here, Anderson prays for an injunction that would release him from custody. 16 Therefore, he challenges “the very fact or duration” of his sentence, and his only 17 remedy is a writ of habeas corpus. 18 V. CONCLUSION 19 The Court notes that the parties made several arguments and cited to 20 several cases not discussed above. The Court has reviewed these arguments and 21 cases and determines that they do not warrant discussion as they do not affect 22 the outcome of the issues before the Court. 23 IT IS THEREFORE ORDERED THAT Plaintiff’s objection (ECF No. 28) to the 24 Report and Recommendation of U.S. Magistrate Judge Brenda Weksler is 25 overruled. The Report and Recommendation (ECF No. 25) is therefore adopted in 26 full. 27 IT IS FURTHER ORDERED THAT Anderson’s Second Amended Complaint 28 (ECF No. 14) be DISMISSED WITH PREJUDICE. 1 IT IS FURTHER ORDERED THAT Anderson’s Motion for Preliminary 2 || Injunction (ECF No. 12) is DENIED. 3 IT IS FURTHER ORDERED THAT Mr. Anderson’s remaining motions at 4 || ECF Nos. 16, 19, 20, 21, 22, 29, and 30 are DENIED as moot. 5 6 DATED THIS 3rd Day of October, 2022.

7 Ares pod den

ANNE R. TRAUM 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28