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Nora v. Schwab

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


April 12, 2010

JOHNNY NORA, PLAINTIFF,
v.
JASON SCHWAB, ARON ALGREN, DEFENDANTS.

The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

ORDER MODIFYING AND ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, all of the records and files herein, the Magistrate Judge's Report and Recommendation, and Plaintiff's Objections. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and adopts the findings, conclusions and recommendations of the Magistrate Judge, with the following modifications:

The Court finds that amendment of the Complaint would be futile. The gravamen of Plaintiff's Complaint is that he was unlawfully arrested and prosecuted because police officers "planted evidence." Plaintiff is challenging the validity of his conviction. Until that conviction is overturned or otherwise found invalid, Plaintiff cannot bring a civil rights action based upon alleged due process violations. Accordingly, no amendment of the Complaint would correct the deficiencies. In addition, the Court concludes that the action should be dismissed without prejudice.

Accordingly, IT IS ORDERED THAT:

1. Judgment shall be entered dismissing this action without prejudice.

2. The Clerk shall serve copies of this Order and the Judgment herein by United States mail on Plaintiff.

20100412

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