Tagle v. Hamers et al
Filing
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ORDER Denying as moot 5 Application for Leave to Proceed in forma pauperis. This Action is Dismissed with prejudice. Signed by Judge Miranda M. Du on 5/1/2013. (Copies have been distributed pursuant to the NEF; CC: Plaintiff with Required forms - SLR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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VICTOR TAGLE,
Case No. 2:13-cv-00388-MMD-GWF
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Plaintiff,
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ORDER
v.
KATHLEEN M. HAMERS, et al.,
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Defendants.
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Plaintiff, a Nevada state prisoner, has submitted a pro se civil rights complaint
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filed pursuant to 42 U.S.C. § 1983.
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I.
IN FORMA PAUPERIS APPLICATION
Plaintiff has filed an application to proceed in forma pauperis.
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(Dkt. no. 5.)
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However, on April 19, 2013, plaintiff paid the Clerk of Court the full filing fee of $350.00
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for this action. (Dkt. no. 6.) As such, plaintiff’s motion to proceed in forma pauperis is
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denied as moot.
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II.
SCREENING STANDARD
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Federal courts must conduct a preliminary screening in any case in which a
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prisoner seeks redress from a governmental entity or officer or employee of a
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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify
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any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a
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claim upon which relief may be granted or seek monetary relief from a defendant who is
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immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings, however,
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must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d. 696, 699 (9th
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Cir. 1988).
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essential elements: (1) that a right secured by the Constitution or laws of the United
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States was violated, and (2) that the alleged violation was committed by a person acting
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under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two
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In addition to the screening requirements under § 1915A, pursuant to the Prison
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Litigation Reform Act of 1995 (PLRA), a federal court must dismiss a prisoner’s claim, “if
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the allegation of poverty is untrue,” or if the action “is frivolous or malicious, fails to state
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a claim on which relief may be granted, or seeks monetary relief against a defendant
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who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for
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failure to state a claim upon which relief can be granted is provided for in Federal Rule
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of Civil Procedure 12(b)(6), and the court applies the same standard under § 1915 when
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reviewing the adequacy of a complaint or an amended complaint.
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dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the
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complaint with directions as to curing its deficiencies, unless it is clear from the face of
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the complaint that the deficiencies could not be cured by amendment. See Cato v.
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United States, 70 F.3d. 1103, 1106 (9th Cir. 1995).
When a court
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Review under Rule 12(b)(6) is essentially a ruling on a question of law. See
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Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal
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for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any
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set of facts in support of the claim that would entitle him or her to relief. See Morley v.
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Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes
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as true all allegations of material fact stated in the complaint, and the court construes
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them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d
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955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent
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standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5,
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9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). While the standard
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under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide
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more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
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555 (2007). A formulaic recitation of the elements of a cause of action is insufficient.
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Id.; see Papasan v. Allain, 478 U.S. 265, 286 (1986).
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Additionally, a reviewing court should “begin by identifying pleadings [allegations]
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that, because they are no more than mere conclusions, are not entitled to the
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assumption of truth.”
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conclusions can provide the framework of a complaint, they must be supported with
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factual allegations.” Id. “When there are well-pleaded factual allegations, a court should
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assume their veracity and then determine whether they plausibly give rise to an
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entitlement to relief.” Id. “Determining whether a complaint states a plausible claim for
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relief [is] a context-specific task that requires the reviewing court to draw on its judicial
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experience and common sense.” Id.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
“While legal
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Finally, all or part of a complaint filed by a prisoner may therefore be dismissed
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sua sponte if the prisoner’s claims lack an arguable basis either in law or in fact. This
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includes claims based on legal conclusions that are untenable (e.g., claims against
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defendants who are immune from suit or claims of infringement of a legal interest which
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clearly does not exist), as well as claims based on fanciful factual allegations (e.g.,
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fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28
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(1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
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III.
SCREENING OF THE COMPLAINT
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In the complaint, plaintiff brings action against a Clark County deputy public
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defender, a Clark County district attorney, a Las Vegas Metropolitan Police Department
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officer, and a Clark County Detention Center official. Plaintiff alleges that he received
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“inappropriate” assistance of counsel during his criminal proceedings, a denial of equal
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protection during his criminal proceedings, and was subject to unreasonable search and
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seizure in connection with his arrest. Plaintiff’s allegations challenge the conviction for
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which he is now incarcerated. Plaintiff seeks “sentence relief,” which appears to mean
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release from incarceration.
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When a prisoner challenges the legality or duration of his custody, or raises a
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constitutional challenge which could entitle him to an earlier release, his sole federal
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remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v.
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Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). When seeking
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damages for an allegedly unconstitutional conviction or imprisonment, “a § 1983 plaintiff
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must prove that the conviction or sentence has been reversed on direct appeal,
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expunged by executive order, declared invalid by a state tribunal authorized to make
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such determination, or called into question by a federal court’s issuance of a writ of
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habeas corpus, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 487-88 (1994).
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“A claim for damages bearing that relationship to a conviction or sentence that has not
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been so invalidated is not cognizable under § 1983.”
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alleged that his conviction has been reversed or otherwise invalidated. Plaintiff fails to
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state a cognizable civil rights claim. Because amendment would be futile, this action is
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being dismissed with prejudice and without leave to amend. To the extent that plaintiff
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seeks to challenge the conviction under which he is incarcerated, he may do so by filing
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the form habeas petition provided by the court, in a new action, as specified below.
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IV.
CONCLUSION
IT IS THEREFORE ORDERED that petitioner’s motion to proceed in forma
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Id. at 488. Plaintiff has not
pauperis (dkt. no. 5) is DENIED as moot.
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IT IS FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE.
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IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment
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accordingly.
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IT IS FURTHER ORDERED that this Court CERTIFIES that any in forma
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pauperis appeal from this order would not be taken “in good faith” pursuant to 28 U.S.C.
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§ 1915(a)(3).
IT FURTHER IS ORDERED that the Clerk of the Court shall send plaintiff two (2)
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copies of an in forma pauperis application form for a prisoner, two (2) copies of a blank
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28 U.S.C. § 2254 habeas corpus petition form, and one (1) copy of instructions for the
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each.
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IT IS FURTHER ORDERED that plaintiff may file a habeas corpus petition and in
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forma pauperis application in a new action, but he may not file further documents in this
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action.
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DATED THIS 1st day of May 2013.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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