Gonzalez v. Cox et al

Filing 3

ORDER Granting Plaintiff's 1 Motion/Application for Leave to Proceed in forma pauperis. Even though this action is being dismissed the full filing fee must still be paid. Plaintiff's 2 Motion to Appoint Counsel is Denied as moot. The clerk of the court shall file the complaint. This action is DISMISSED for failure to state a claim upon which relief can be granted. The clerk of the court shall enter judgment accordingly. IT IS FURTHER ORDERED that an appeal from the court's judgment would not be taken in good faith. Signed by Judge Andrew P. Gordon on 12/19/2013. (Copies have been distributed pursuant to the NEF - cc: Finance and Chief of Inmate Services for NDOC - SLD)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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HENRY FROMETA GONZALEZ,

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Plaintiff,

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vs.

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Case No. 2:13-cv-01090-APG-NJK

J. G. COX, et al.,

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ORDER

Defendants.

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Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections, has

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submitted an application to proceed in forma pauperis (Dkt. #1) and a civil rights complaint

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pursuant to 42 U.S.C. § 1983. The court finds that plaintiff is unable to pay an initial partial filing

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fee. See 28 U.S.C. § 1915(b)(4). Plaintiff still must pay the filing fee in full through monthly

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installments. See 28 U.S.C. § 1915(b)(2).

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The court has reviewed the complaint, and the court will dismiss this action. When a

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“prisoner seeks redress from a governmental entity or officer or employee of a governmental

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entity,” the court must “identify cognizable claims or dismiss the complaint, or any portion of the

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complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief

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may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28

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U.S.C. § 1915A(b). Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of

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a complaint for failure to state a claim upon which relief can be granted. Allegations of a pro se

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complainant are held to less stringent standards than formal pleadings drafted by lawyers. Haines v.

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Kerner, 404 U.S. 519, 520 (1972) (per curiam).

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Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” . . . [T]he pleading
standard Rule 8 announces does not require “detailed factual allegations,” but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that
offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of
action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of
“further factual enhancement.” . . .
[A] complaint must contain sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a defendant has acted
unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s
liability, it “stops short of the line between possibility and plausibility of ‘entitlement to
relief.’”

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Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citations omitted).
Plaintiff alleges that after the Nevada Supreme Court reversed his conviction on some

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counts, his sentence should have expired in April 2012. He asks the court to order his release from

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prison. “[W]hen a state prisoner is challenging the very fact or duration of his physical

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imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a

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speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”

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Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). The court cannot give plaintiff the relief he seeks

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in a civil rights action pursuant to 42 U.S.C. § 1983. Amendment of the complaint could not cure

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this defect.

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Plaintiff’s motion to request appointment of counsel (Dkt. #2) is moot because the court is
dismissing this action.
IT IS THEREFORE ORDERED that plaintiff’s application to proceed in forma pauperis

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(Dkt. #1) is GRANTED. Plaintiff shall not be required to pay an initial partial filing fee.

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However, even though this action is being dismissed, the full filing fee must still be paid pursuant to

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28 U.S.C. § 1915(b)(2).

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IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), the Nevada

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Department of Corrections shall pay to the Clerk of the United States District Court, District of

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Nevada, 20% of the preceding month’s deposits to plaintiff’s account (inmate #94818), in the

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months that the account exceeds $10.00, until the full $350 filing fee has been paid for this action.
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The clerk shall send a copy of this order to the finance division of the clerk’s office. The clerk shall

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also send a copy of this order to the attention of the chief of inmate services for the Nevada

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Department of Corrections, P.O. Box 7011, Carson City, NV 89702.

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IT IS FURTHER ORDERED that plaintiff’s motion to request appointment of counsel
(Dkt. #2) is DENIED as moot.

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IT IS FURTHER ORDERED that the clerk of the court shall file the complaint.

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IT IS FURTHER ORDERED that this action is DISMISSED for failure to state a claim

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upon which relief can be granted. The clerk of the court shall enter judgment accordingly.
IT IS FURTHER ORDERED that an appeal from the court’s judgment would not be taken
in good faith.
DATED: December 19, 2013.

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_________________________________
ANDREW P. GORDON
United States District Judge

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