Klucka v. Almase et al

Filing 4

ORDER. IT IS THEREFORE ORDERED that 1 application to proceed in forma pauperis is GRANTED. IT IS FURTHER ORDERED that 2 motion for the court to appoint someone to serve documents is DENIED as moot. IT IS FURTHER ORDERED that 3 motion for le ave of court to file a longer than normal complaint is GRANTED. The clerk of the court shall file the complaint. IT IS FURTHER ORDERED that this action is DISMISSED. The clerk of the court shall enter judgment accordingly. Signed by Judge Richard F. Boulware, II on 7/2/15. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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DAVID KLUCKA,

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Plaintiff,

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vs.

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CAESAR ALMASE, et al.,

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Case No. 2:15-cv-00910-RFB-GWF

Defendants.

ORDER

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Plaintiff, who is a prisoner in custody at the Clark County Detention Center, has submitted an

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application to proceed in forma pauperis (#1), a civil rights complaint pursuant to 42 U.S.C. § 1983,

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and a motion for leave of court to file a longer than normal complaint (#3). The court finds that plaintiff

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is unable to pay an initial partial filing fee. See 28 U.S.C. § 1915(b)(4). Plaintiff still must pay the

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filing fee in full through monthly installments. See 28 U.S.C. § 1915(b)(2).

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The court grants the motion to file a long complaint. The court has reviewed the complaint, and

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the court will dismiss this action. When a “prisoner seeks redress from a governmental entity or officer

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or employee of a governmental entity,” the court must “identify cognizable claims or dismiss the

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complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state

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a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune

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from such relief.” 28 U.S.C. § 1915A(b). Rule 12(b)(6) of the Federal Rules of Civil Procedure

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provides for dismissal of a complaint for failure to state a claim upon which relief can be granted.

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Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted

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by lawyers. Haines v. 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.’”
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citations omitted).

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Plaintiff is facing charges in the Eighth Judicial District Court of the State of Nevada. He

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entered into a plea agreement with which he is now dissatisfied. He asks the court to allow him to

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withdraw from the plea agreement, to dismiss charges of unlawful acts related to human excrement or

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bodily fluid, a violation of Nev. Rev. Stat. § 212.180, to remove his attorneys from the case, and for

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access to a law library.

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This court generally must abstain from interfering with pending state criminal cases. Younger
v. Harris, 401 U.S. 37, 41 (1971).

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We must abstain under Younger if four requirements are met: (1) a state-initiated proceeding
is ongoing; (2) the proceeding implicates important state interests; (3) the federal plaintiff is not
barred from litigating federal constitutional issues in the state proceeding; and (4) the federal
court action would enjoin the proceeding or have the practical effect of doing so, i.e., would
interfere with the state proceeding in a way that Younger disapproves.

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San Jose Silicon Valley Chamber of Commerce Political Action Committee v. City of San Jose, 546

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F.3d 1087, 1092 (9th Cir. 2008). All four requirements are met. Plaintiff is currently a defendant in

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a state criminal case, which naturally is an important state interest. Plaintiff also has opportunities in

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the state courts to complain about the effectiveness of his counsel and the rulings of the trial judge.

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Finally, an order allowing petitioner to withdraw from his plea agreement, dismissing criminal charges,

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and removing defense attorneys would have the practical effect of enjoining the ongoing criminal

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proceedings in state court. Therefore, this court will abstain from interfering with the state-court

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proceedings, and the court will dismiss the action.

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Petitioner’s motion for the court to appoint someone to serve documents (#2) is moot because
the court is dismissing this action.

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IT IS THEREFORE ORDERED that plaintiff’s application to proceed in forma pauperis (#1)

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is GRANTED. Plaintiff shall not be required to pay an initial partial filing fee. However, even though

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this action is being dismissed, by commencing this action plaintiff incurred the obligation to pay the the

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full filing fee pursuant to 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 Clark County

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Detention Center shall pay to the clerk of the United States District Court, District of Nevada, 20% of

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the preceding month’s deposits to the prisoner’s account (inmate #15959247), in months that the

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account exceeds $10.00, until the full three hundred fifty dollar ($350.00) filing fee has been paid for

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this action. If plaintiff should be transferred and become under the care of the Nevada Department of

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Corrections, the accounting supervisor of the Clark County Detention Center is directed to send a copy

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of this order to the attention of the chief of Inmate Services for the Nevada Department of Corrections,

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P.O. Box 7011, Carson City, NV 89702, indicating the amount that plaintiff has paid toward the filing

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fee, so that funds may continue to be deducted from plaintiff’s account. The clerk shall send a copy of

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this order to the accounting supervisor of the Clark County Detention Center, 330 S. Casino Center

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Blvd., Las Vegas, NV 89101.

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IT IS FURTHER ORDERED that plaintiff’s motion for the court to appoint someone to serve
documents (#2) is DENIED as moot.
IT IS FURTHER ORDERED that plaintiff’s motion for leave of court to file a longer than
normal complaint (#3) is GRANTED. The clerk of the court shall file the complaint.
IT IS FURTHER ORDERED that this action is DISMISSED. The clerk of the court shall enter
judgment accordingly.
DATED: July 2, 2015.

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_________________________
RICHARD F. BOULWARE, II
United States District Judge

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