Tagle v. Hamers et al

Filing 8

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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 VICTOR TAGLE, Case No. 2:13-cv-00388-MMD-GWF 10 Plaintiff, 11 12 ORDER v. KATHLEEN M. HAMERS, et al., 13 Defendants. 14 Plaintiff, a Nevada state prisoner, has submitted a pro se civil rights complaint 15 16 filed pursuant to 42 U.S.C. § 1983. 17 I. IN FORMA PAUPERIS APPLICATION Plaintiff has filed an application to proceed in forma pauperis. 18 (Dkt. no. 5.) 19 However, on April 19, 2013, plaintiff paid the Clerk of Court the full filing fee of $350.00 20 for this action. (Dkt. no. 6.) As such, plaintiff’s motion to proceed in forma pauperis is 21 denied as moot. 22 II. SCREENING STANDARD 23 Federal courts must conduct a preliminary screening in any case in which a 24 prisoner seeks redress from a governmental entity or officer or employee of a 25 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify 26 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 27 claim upon which relief may be granted or seek monetary relief from a defendant who is 28 immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings, however, 1 must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d. 696, 699 (9th 2 Cir. 1988). 3 essential elements: (1) that a right secured by the Constitution or laws of the United 4 States was violated, and (2) that the alleged violation was committed by a person acting 5 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 6 In addition to the screening requirements under § 1915A, pursuant to the Prison 7 Litigation Reform Act of 1995 (PLRA), a federal court must dismiss a prisoner’s claim, “if 8 the allegation of poverty is untrue,” or if the action “is frivolous or malicious, fails to state 9 a claim on which relief may be granted, or seeks monetary relief against a defendant 10 who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for 11 failure to state a claim upon which relief can be granted is provided for in Federal Rule 12 of Civil Procedure 12(b)(6), and the court applies the same standard under § 1915 when 13 reviewing the adequacy of a complaint or an amended complaint. 14 dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the 15 complaint with directions as to curing its deficiencies, unless it is clear from the face of 16 the complaint that the deficiencies could not be cured by amendment. See Cato v. 17 United States, 70 F.3d. 1103, 1106 (9th Cir. 1995). When a court 18 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 19 Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal 20 for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any 21 set of facts in support of the claim that would entitle him or her to relief. See Morley v. 22 Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes 23 as true all allegations of material fact stated in the complaint, and the court construes 24 them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 25 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent 26 standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 27 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). While the standard 28 under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide 2 1 more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 2 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. 3 Id.; see Papasan v. Allain, 478 U.S. 265, 286 (1986). 4 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 5 that, because they are no more than mere conclusions, are not entitled to the 6 assumption of truth.” 7 conclusions can provide the framework of a complaint, they must be supported with 8 factual allegations.” Id. “When there are well-pleaded factual allegations, a court should 9 assume their veracity and then determine whether they plausibly give rise to an 10 entitlement to relief.” Id. “Determining whether a complaint states a plausible claim for 11 relief [is] a context-specific task that requires the reviewing court to draw on its judicial 12 experience and common sense.” Id. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal 13 Finally, all or part of a complaint filed by a prisoner may therefore be dismissed 14 sua sponte if the prisoner’s claims lack an arguable basis either in law or in fact. This 15 includes claims based on legal conclusions that are untenable (e.g., claims against 16 defendants who are immune from suit or claims of infringement of a legal interest which 17 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 18 fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 19 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 20 III. SCREENING OF THE COMPLAINT 21 In the complaint, plaintiff brings action against a Clark County deputy public 22 defender, a Clark County district attorney, a Las Vegas Metropolitan Police Department 23 officer, and a Clark County Detention Center official. Plaintiff alleges that he received 24 “inappropriate” assistance of counsel during his criminal proceedings, a denial of equal 25 protection during his criminal proceedings, and was subject to unreasonable search and 26 seizure in connection with his arrest. Plaintiff’s allegations challenge the conviction for 27 which he is now incarcerated. Plaintiff seeks “sentence relief,” which appears to mean 28 release from incarceration. 3 1 When a prisoner challenges the legality or duration of his custody, or raises a 2 constitutional challenge which could entitle him to an earlier release, his sole federal 3 remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. 4 Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). When seeking 5 damages for an allegedly unconstitutional conviction or imprisonment, “a § 1983 plaintiff 6 must prove that the conviction or sentence has been reversed on direct appeal, 7 expunged by executive order, declared invalid by a state tribunal authorized to make 8 such determination, or called into question by a federal court’s issuance of a writ of 9 habeas corpus, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 487-88 (1994). 10 “A claim for damages bearing that relationship to a conviction or sentence that has not 11 been so invalidated is not cognizable under § 1983.” 12 alleged that his conviction has been reversed or otherwise invalidated. Plaintiff fails to 13 state a cognizable civil rights claim. Because amendment would be futile, this action is 14 being dismissed with prejudice and without leave to amend. To the extent that plaintiff 15 seeks to challenge the conviction under which he is incarcerated, he may do so by filing 16 the form habeas petition provided by the court, in a new action, as specified below. 17 IV. CONCLUSION IT IS THEREFORE ORDERED that petitioner’s motion to proceed in forma 18 19 Id. at 488. Plaintiff has not pauperis (dkt. no. 5) is DENIED as moot. 20 IT IS FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE. 21 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment 22 accordingly. 23 IT IS FURTHER ORDERED that this Court CERTIFIES that any in forma 24 pauperis appeal from this order would not be taken “in good faith” pursuant to 28 U.S.C. 25 § 1915(a)(3). IT FURTHER IS ORDERED that the Clerk of the Court shall send plaintiff two (2) 26 27 copies of an in forma pauperis application form for a prisoner, two (2) copies of a blank 28 /// 4 1 28 U.S.C. § 2254 habeas corpus petition form, and one (1) copy of instructions for the 2 each. 3 IT IS FURTHER ORDERED that plaintiff may file a habeas corpus petition and in 4 forma pauperis application in a new action, but he may not file further documents in this 5 action. 6 7 DATED THIS 1st day of May 2013. 8 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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