Woods v. Kohn et al

Filing 7

REPORT AND RECOMMENDATION Recommending dismissing without prejudice 5 Complaint. Objections to R&R due by 9/11/2017. Signed by Magistrate Judge Nancy J. Koppe on 8/28/2017. (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
REPORT AND RECOMMENDATION

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On July 26, 2017, the Court ordered Plaintiff to file a partial filing fee. Docket No. 4. Having now

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received that partial filing fee, Docket No. 6, the Court will screen Plaintiff’s complaint pursuant to 28

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U.S.C. § 1915. For the reasons discussed more fully below, the undersigned RECOMMENDS that this

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case be DISMISSED without prejudice to Plaintiff seeking relief in state court.

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Upon granting an application to proceed in forma pauperis, courts additionally screen the complaint

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pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the action is legally

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“frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks monetary relief

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from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When a court dismisses a

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complaint under § 1915, the plaintiff should be given leave to amend the complaint with directions as to

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curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be

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cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for

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failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially a ruling

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on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). A properly

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pled complaint must provide a short and plain statement of the claim showing that the pleader is entitled

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to relief. Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although Rule

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8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a

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“formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual

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allegations contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal,

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556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory

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allegations, do not suffice. Id. at 678. Secondly, where the claims in the complaint have not crossed the

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line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570.

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

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lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro

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se pleadings is required after Twombly and Iqbal).

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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 various motions to end that representation. See Docket No. 5

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at 2, 3. The relief Plaintiff seeks is “effective assistance of counsel, [sic] preferrably through the state, and

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not appointed by the Public Defender’s Office.” Id. at 9. In short, Plaintiff wants this Court to overrule

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the state court’s orders. It is well settled that a federal district court does not have appellate jurisdiction

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over a state court, whether by direct appeal, mandamus, or otherwise. See, e.g., Rooker v. Fidelity Trust

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Co., 263 U.S. 413 (1923); Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003). Moreover, the United

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States Supreme Court has long made clear that absent extraordinary circumstances, federal courts must not

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interfere with pending state criminal prosecutions even when they raise issues of federal rights or interests.

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See, e.g., Younger v. Harris, 401 U.S. 37, 44 (1971). A federal court must abstain under Younger if four

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requirements are met:

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(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 Comm. v. City of San Jose, 546 F.3d 1087,

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1092 (9th Cir. 2008). Each of these requirements is met here.

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For these reasons, Plaintiff has failed to state a claim upon which relief may be granted. Moreover,

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amendment would be futile.

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DISMISSED without prejudice to Plaintiff seeking relief in state court.

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Accordingly, the undersigned RECOMMENDS that this case be

Dated: August 28, 2017

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_____________________________________
Nancy J. Koppe
UNITED STATES MAGISTRATE JUDGE

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NOTICE

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Pursuant to Local Rule IB 3-2, any objection to this Report and Recommendation must be in writing

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and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has held that the courts

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of appeal may determine that an appeal has been waived due to the failure to file objections within the

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specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file

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objections within the specified time and (2) failure to properly address and brief the objectionable issues

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waives the right to appeal the District Court’s order and/or appeal factual issues from the order of the

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District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist.,

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708 F.2d 452, 454 (9th Cir. 1983).

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