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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 LEONARD R. WOODS, 10 11 12 13 14 ) ) Plaintiff(s), ) ) v. ) ) PHILLIP J. KOHN, et al., ) ) Defendant(s). ) __________________________________________) Case No. 2:17-cv-01607-JCM-NJK REPORT AND RECOMMENDATION 15 On July 26, 2017, the Court ordered Plaintiff to file a partial filing fee. Docket No. 4. Having now 16 received that partial filing fee, Docket No. 6, the Court will screen Plaintiff’s complaint pursuant to 28 17 U.S.C. § 1915. For the reasons discussed more fully below, the undersigned RECOMMENDS that this 18 case be DISMISSED without prejudice to Plaintiff seeking relief in state court. 19 Upon granting an application to proceed in forma pauperis, courts additionally screen the complaint 20 pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the action is legally 21 “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks monetary relief 22 from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When a court dismisses a 23 complaint under § 1915, the plaintiff should be given leave to amend the complaint with directions as to 24 curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be 25 cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 26 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for 27 failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially a ruling 28 on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). A properly 1 pled complaint must provide a short and plain statement of the claim showing that the pleader is entitled 2 to relief. Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although Rule 3 8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a 4 “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 5 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The court must accept as true all well-pled factual 6 allegations contained in the complaint, but the same requirement does not apply to legal conclusions. Iqbal, 7 556 U.S. at 679. Mere recitals of the elements of a cause of action, supported only by conclusory 8 allegations, do not suffice. Id. at 678. Secondly, where the claims in the complaint have not crossed the 9 line from conceivable to plausible, the complaint should be dismissed. Twombly, 550 U.S. at 570. 10 Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by 11 lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (finding that liberal construction of pro 12 se pleadings is required after Twombly and Iqbal). 13 Plaintiff’s claims arise out of his dissatisfaction with his counsel in his on-going murder trial in state 14 court, and the rulings by that court denying various motions to end that representation. See Docket No. 5 15 at 2, 3. The relief Plaintiff seeks is “effective assistance of counsel, [sic] preferrably through the state, and 16 not appointed by the Public Defender’s Office.” Id. at 9. In short, Plaintiff wants this Court to overrule 17 the state court’s orders. It is well settled that a federal district court does not have appellate jurisdiction 18 over a state court, whether by direct appeal, mandamus, or otherwise. See, e.g., Rooker v. Fidelity Trust 19 Co., 263 U.S. 413 (1923); Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003). Moreover, the United 20 States Supreme Court has long made clear that absent extraordinary circumstances, federal courts must not 21 interfere with pending state criminal prosecutions even when they raise issues of federal rights or interests. 22 See, e.g., Younger v. Harris, 401 U.S. 37, 44 (1971). A federal court must abstain under Younger if four 23 requirements are met: 24 26 (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. 27 San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 28 1092 (9th Cir. 2008). Each of these requirements is met here. 25 2 1 For these reasons, Plaintiff has failed to state a claim upon which relief may be granted. Moreover, 2 amendment would be futile. 3 DISMISSED without prejudice to Plaintiff seeking relief in state court. 4 Accordingly, the undersigned RECOMMENDS that this case be Dated: August 28, 2017 5 _____________________________________ Nancy J. Koppe UNITED STATES MAGISTRATE JUDGE 6 7 NOTICE 8 9 Pursuant to Local Rule IB 3-2, any objection to this Report and Recommendation must be in writing 10 and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has held that the courts 11 of appeal may determine that an appeal has been waived due to the failure to file objections within the 12 specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file 13 objections within the specified time and (2) failure to properly address and brief the objectionable issues 14 waives the right to appeal the District Court’s order and/or appeal factual issues from the order of the 15 District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 16 708 F.2d 452, 454 (9th Cir. 1983). 17 18 19 20 21 22 23 24 25 26 27 28 3

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