Woods v. Kohn et al

Filing 3

ORDER holding in abeyance 1 Motion/Application for Leave to Proceed in forma pauperis. Plaintiff shall have until July 14, 2017 to withdraw his Application to Proceed In Forma Pauperis. Signed by Magistrate Judge Nancy J. Koppe on 6/14/2017. (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 LEONARD R. WOODS, 11 12 13 14 15 ) ) Plaintiff(s), ) ) v. ) ) PHILLIP J. KOHN, et al., ) ) Defendant(s). ) __________________________________________) Case No. 2:17-cv-01607-JCM-NJK ORDER REGARDING APPLICATION TO PROCEED IN FORMA PAUPERIS (Docket No. 1) 16 This matter is before the Court on Plaintiff’s Application to Proceed In Forma Pauperis. Docket 17 No. 1. Plaintiff is a prisoner proceeding in this action pro se. Plaintiff has submitted the financial affidavit 18 and inmate trust account statement required by 28 U.S.C. § 1915(a)(2). His request to proceed in forma 19 pauperis would ordinarily be granted pursuant to 28 U.S.C. § 1915(a). 20 Plaintiff’s claims arise out of his dissatisfaction with his counsel in his on-going murder trial in state 21 court, and the rulings by that court denying motions to end that representation. See Docket No. 1-1 at 2, 22 3. The relief Plaintiff seeks is “effective assistance of counsel, [sic] preferrably through the state, and not 23 appointed by the Public Defender’s Office.” Id. at 9. It is well settled that a federal district court does not 24 have appellate jurisdiction over a state court, whether by direct appeal, mandamus, or otherwise. See, e.g., 25 Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 26 2003). Moreover, the United States Supreme Court has long made clear that absent extraordinary 27 circumstances, federal courts must not interfere with pending state criminal prosecutions even when they 28 raise issues of federal rights or interests. See, e.g., Younger v. Harris, 401 U.S. 37, 44 (1971). 1 If the court grants Plaintiff’s Application to Proceed In Forma Pauperis, Plaintiff will be required, 2 under 28 U.S.C. § 1915(b)(2), as amended by the Prison Litigation Reform Act of 1995, to pay the full 3 $350 filing fee, even if his complaint is dismissed. As set forth above, the Court believes Plaintiff’s claims 4 will not survive the pleading stage. Given these circumstances, the Court will allow Plaintiff thirty days 5 to withdraw his Application to Proceed In Forma Pauperis. If Plaintiff does not, the Court will grant his 6 Application to Proceed In Forma Pauperis, screen Plaintiff’s complaint, and order that he pay the $350 7 filing fee in accordance with 28 U.S.C. § 1915. 8 Based upon the foregoing, IT IS ORDERED that: 9 1. 10 11 Plaintiff’s Application to Proceed In Forma Pauperis (Docket No. 1) is HELD IN ABEYANCE. 2. Plaintiff shall have until July 14, 2017 to withdraw his Application to Proceed In Forma 12 Pauperis. If he does not, the court will screen the complaint pursuant to 28 U.S.C. § 1915, 13 recommend dismissal, and order Plaintiff to pay the $350 filing fee. 14 15 16 Dated: June 14, 2017 _____________________________________ Nancy J. Koppe UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2

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