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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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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LEONARD R. WOODS,
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Plaintiff(s),
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v.
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PHILLIP J. KOHN, et al.,
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Defendant(s).
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__________________________________________)

Case No. 2:17-cv-01607-JCM-NJK
ORDER REGARDING APPLICATION
TO PROCEED IN FORMA PAUPERIS
(Docket No. 1)

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This matter is before the Court on Plaintiff’s Application to Proceed In Forma Pauperis. Docket

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No. 1. Plaintiff is a prisoner proceeding in this action pro se. Plaintiff has submitted the financial affidavit

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and inmate trust account statement required by 28 U.S.C. § 1915(a)(2). His request to proceed in forma

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pauperis would ordinarily be granted pursuant to 28 U.S.C. § 1915(a).

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Plaintiff’s claims arise out of his dissatisfaction with his counsel in his on-going murder trial in state

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court, and the rulings by that court denying motions to end that representation. See Docket No. 1-1 at 2,

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3. The relief Plaintiff seeks is “effective assistance of counsel, [sic] preferrably through the state, and not

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appointed by the Public Defender’s Office.” Id. at 9. It is well settled that a federal district court does not

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have appellate jurisdiction over a state court, whether by direct appeal, mandamus, or otherwise. See, e.g.,

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Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir.

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2003). Moreover, the United States Supreme Court has long made clear that absent extraordinary

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circumstances, federal courts must not interfere with pending state criminal prosecutions even when they

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raise issues of federal rights or interests. See, e.g., Younger v. Harris, 401 U.S. 37, 44 (1971).

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If the court grants Plaintiff’s Application to Proceed In Forma Pauperis, Plaintiff will be required,

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under 28 U.S.C. § 1915(b)(2), as amended by the Prison Litigation Reform Act of 1995, to pay the full

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$350 filing fee, even if his complaint is dismissed. As set forth above, the Court believes Plaintiff’s claims

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will not survive the pleading stage. Given these circumstances, the Court will allow Plaintiff thirty days

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to withdraw his Application to Proceed In Forma Pauperis. If Plaintiff does not, the Court will grant his

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Application to Proceed In Forma Pauperis, screen Plaintiff’s complaint, and order that he pay the $350

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filing fee in accordance with 28 U.S.C. § 1915.

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Based upon the foregoing, IT IS ORDERED that:

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1.

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Plaintiff’s Application to Proceed In Forma Pauperis (Docket No. 1) is HELD IN
ABEYANCE.

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Plaintiff shall have until July 14, 2017 to withdraw his Application to Proceed In Forma

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Pauperis. If he does not, the court will screen the complaint pursuant to 28 U.S.C. § 1915,

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recommend dismissal, and order Plaintiff to pay the $350 filing fee.

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Dated: June 14, 2017
_____________________________________
Nancy J. Koppe
UNITED STATES MAGISTRATE JUDGE

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