1

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 GUSTAVO HERNANDEZ, Case No. 3:22-cv-00304-ART-CLB 5 Plaintiff, ORDER 6 v.

7 KERRY EARLEY,

8 Defendant.

9 Pro se Plaintiff Gustavo Hernandez brings this action under 42 U.S.C. 10 § 1983. Before the Court is the Report and Recommendation (“R&R” or 11 “Recommendation”) of United States Magistrate Judge Carla Baldwin (ECF No. 12 9), recommending that this action be dismissed without prejudice and without 13 leave to amend as Plaintiff challenges the constitutionality of his state court 14 conviction, making a habeas corpus action appropriate and a § 1983 action 15 inappropriate. Plaintiff timely filed an objection. (ECF No. 10.) As explained below, 16 the Court adopts the R&R, and will dismiss this case without prejudice and 17 without leave to amend and deny Plaintiff’s application to proceed in forma 18 pauperis as moot. 19 The Court “may accept, reject, or modify, in whole or in part, the findings 20 or recommendations made by the magistrate judge.”

(b)(1). Here, 21 Judge Baldwin recommends dismissal of this action without prejudice and 22 without leave to amend because Plaintiff brings challenges to the adequacy of the 23 proceedings in state court, which are proper subjects for a habeas corpus action 24 and not a § 1983 action pursuant to Heck v. Humphrey,

(1994). 25 (ECF No. 9 at 4.) Having reviewed Plaintiff’s complaint, the Court agrees with 26 Judge Baldwin. Plaintiff brings three claims of “court negligence” stemming from 27 the alleged failure of the state court to enter his sentence on the docket. (ECF No. 28 || 1-1 at 2-5.) This is a challenge to an underlying state court proceeding 2 || appropriate for a habeas corpus action. 3 In Plaintiff's objection, Plaintiff acknowledges that his action was initiated 4 || in error and requests leave to amend. (ECF No. 10 at 2.) However, as Judge 5 || Baldwin noted, Plaintiff had not been assessed a filing fee in this case. As such, 6 || Plaintiff will not be prejudiced by being required to file a proper action. 7 Having reviewed the R&R and the record in this case, the Court will adopt 8 || the R&R in full. 9 It is therefore ordered that Judge Baldwin’s Report and Recommendation 10 || (ECF No. 9) is accepted and adopted in full. 11 It is further ordered that Plaintiff's application to proceed in forma pauperis 12 ||} (ECF No. 1) be denied as moot. 13 It is further ordered that the Clerk file Plaintiffs complaint (ECF No. 1-1). 14 It is further ordered that Plaintiffs complaint be dismissed without 15 || prejudice and without leave to amend. 16 The Clerk of Court is directed to administratively close this case. 17 18 19 DATED THIS 10 day of July 2023. 20 21 j idan 22 Aras 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28