1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 JUSTIN J. EDMISTEN, Case No. 3:22-cv-00476-ART-CLB

7 Plaintiff, ORDER ADOPTING REPORT AND v. RECOMMENDATION (ECF No. 3) 8 KENDEN SLATTERLY, et al., 9 Defendant. 10 11 Pro se Plaintiff Justin Edmisten (“Edmisten”) brings this action under 42

suing Defendant Officer KenDen Slatterly. (ECF No. 1-1). 13 Edmisten’s Complaint asserts a claim for “false arrest” which directly relates to 14 his underlying criminal case and conviction. (Id. at 2-6). Before the Court is the 15 Report and Recommendation (“R&R” or “Recommendation”) of United States 16 Magistrate Judge Carla Baldwin (ECF No. 3), recommending that this action be 17 dismissed and Plaintiff’s application to proceed in forma pauperis (“IFP”) (ECF 18 No. 1) be denied as moot. For the reasons explained below the Court adopts the 19 R&R. Edmisten filed an Objection to the R&R. (ECF No. 4). Because the Court 20 agrees with Judge Baldwin’s analysis, the Court will adopt the R&R in full. 21 I. BACKGROUND 22 The Court incorporates by reference Judge Baldwin’s recitation of 23 Edmisten’s allegations in his Complaint, (ECF No. 1-1), provided in the R&R (ECF 24 No. 3) which the Court adopts. 25 II. LEGAL STANDARD 26 This Court “may accept, reject, or modify, in whole or in part, the findings 27 or recommendations made by the magistrate judge.”

(b)(1). Where 28 1 the Court is required to “make a de novo determination of those portions of the 2 [report and recommendation] to which objection is made.”

The Court’s review 3 is thus de novo because Edmisten filed his Objection. (ECF No. 4). 4 III. DISCUSSION 5 In his one-page Objection, Edmisten notes that he understands his 6 underlying criminal conviction needs to be “invalidated per 28 U.S.C. § 1495” 7 but nonetheless requests an “accommodation” in this case due to perceived 8 delays in his habeas proceeding. (ECF No. 4). The Court must overrule 9 Edmisten’s Objection because he attempts to challenge the validity of his 10 underlying criminal conviction through a lawsuit brought under

1983. 12 When a prisoner challenges the legality or duration of his custody, raises 13 a constitutional challenge which could entitle him to an earlier release, or seeks 14 damages for purported deficiencies in his state court criminal case, which 15 effected a conviction or lengthier sentence, his sole federal remedy is a writ of 16 habeas corpus. Edwards v. Balisok,

(1997); Heck, 512 U.S. at 17 481; Wolf v. McDonnell,

(1974); Preiser v. Rodriguez,

475 (1973); Simpson, 528 F.3d at 692-93. Stated differently, where “a judgment 19 in favor of the plaintiff would necessarily imply the invalidity of his conviction or 20 sentence,” then “the complaint must be dismissed unless the plaintiff can 21 demonstrate that the conviction or sentence has already been invalidated.” Heck, 22 512 U.S. at 487. 23 Edmisten argues that Defendant KenDen Slatterly arrested Edmisten 24 without probable cause, leading to a criminal conviction. (ECF No. 1-1 at 2). 25 Judge Baldwin recommended dismissal because it appears that Edmisten is 26 challenging the constitutionality of his state court criminal conviction. 27 Consequently, he must demonstrate that his conviction has been overturned to 28 proceed in an action under § 1983. As Edmisten has not done so, his sole relief 1 || is a habeas corpus action. Edmisten’s Objection confirms that the R&R is 2 || correct. Having reviewed the R&R and the record in this case, the Court will 3 || adopt the R&R in full. 4 IT IS THEREFORE ORDERED that Judge Baldwin’s Report and 5 || Recommendation (ECF No. 3) is ACCEPTED AND ADOPTED IN FULL; 6 IT IS FURTHER ORDERED that the Clerk shall file Plaintiffs Complaint 7 || (ECF No. 1-1); 8 IT IS FURTHER ORDERED that Plaintiffs Complaint (ECF No. 1-1) is 9 || DISMISSED WITHOUT PREJUDICE and WITHOUT LEAVE TO AMEND; 10 IT IS FURTHER ORDERED that Plaintiff's motion to proceed in forma 11 || pauperis (ECF No. 1) is DENIED AS MOOT; 12 IT IS FURTHER ORDERED that the Clerk of Court ENTER JUDGMENT 13 || accordingly and CLOSE this case. 14 15 DATED THIS 3rd Day of April 2023. 16 17 fone Rlassst Den 18 ANNE R. TRAUM 19 UNITED STATES DISTRICT JUDGE

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