Wright v. Frayn et al

Filing 15

SCREENING ORDER AND REPORT AND RECOMMENDATION. IT IS THEREFORE ORDERED that Wright's application to proceed in forma pauperis (ECF No. 9 ) is GRANTED. IT IS FURTHER ORDERED that the clerk of court must file Wright's complaint (ECF N o. 1 -1). IT IS RECOMMENDED that Wright's complaint be DISMISSED, with prejudice, for failure to state a claim upon which relief can be granted. Objections to R&R due by 4/9/2019. Signed by Magistrate Judge Carl W. Hoffman on 3/26/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BRIAN WRIGHT,

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Plaintiff,

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Case No. 2:17-cv-01844-MMD-CWH
SCREENING ORDER AND
REPORT AND RECOMMENDATION

v.
KIMBERLY FRAYN, et al.,

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Defendants.

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Pro se prisoner Brian Wright brings this civil-rights case under 42 U.S.C. § 1983 for

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events that occurred during the investigation and prosecution of a criminal case against Wright,

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United States of America v. Brian Wright et al., No. 2:14-cr-00357-APG-VCF. Wright moves to

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proceed in forma pauperis. (IFP Application (ECF No. 9).) Wright submitted the declaration

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required by 28 U.S.C. § 1915(a) showing an inability to prepay fees and costs or give security for

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them. Wright’s request to proceed in forma pauperis therefore will be granted. The court now

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screens Wright’s complaint (ECF No. 1-1) as required by 28 U.S.C. §§ 1915(e)(2) and 1915A.

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I.

ANALYSIS

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A. Screening standard for pro se prisoner claims

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Federal courts must conduct a preliminary screening in any case in which a prisoner seeks

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redress from a governmental entity or officer or employee of a governmental entity. See 28

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U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any

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claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),

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(2). In addition to the screening requirements under § 1915A, the Prison Litigation Reform Act

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requires a federal court to dismiss a prisoner’s claim if it “fails to state a claim on which relief

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may be granted.” 28 U.S.C. § 1915(e)(2); accord Fed. R. Civ. Proc. 12(b)(6). To state a claim

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under 42 U.S.C. § 1983, a plaintiff must allege “(1) the defendants acting under color of state law

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(2) deprived plaintiffs of rights secured by the Constitution or federal statutes.” Williams v.

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California, 764 F.3d 1002, 1009 (9th Cir. 2014) (quotation omitted).

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Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for

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failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668

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F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient

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factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and

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may only dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in

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support of his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908

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(9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).

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In considering whether the complaint is sufficient to state a claim, all allegations of

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material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler

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Summit P’ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).

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Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff

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must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S.

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544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id.

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Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se

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plaintiff should be given leave to amend the complaint with notice regarding the complaint’s

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deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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B. Screening the amended complaint

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Across seven claims, Wright sues defendants Kimberly Frayn, Christopher McPeak,

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Christopher Aguilar, Cristina Silva, and Lance Maningo for alleged violations of the Fourth,

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Fifth, Sixth, Eighth, and Fourteenth Amendments that occurred during the underlying criminal

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proceedings against Wright. (Compl. (ECF No. 1-1) at 2-3, 7-13.) Wright alleges that Frayn and

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Silva were the Assistant United States Attorneys who prosecuted his case, that McPeak is an FBI

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agent, that Aguilar is a Henderson Police Department officer, and that Maningo was his defense

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attorney. (Id. at 2-13.) Wright alleges the defendants, including his defense attorney, conspired
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to frame him for crimes he did not commit, resulting in various civil rights violations during the

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course of the investigation and prosecution of his criminal case. (Id.) Wright seeks $10,000,000

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in damages against each defendant.
If a § 1983 case seeking damages alleges constitutional violations that would necessarily

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imply the invalidity of a conviction or sentence, the prisoner must establish that the underlying

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sentence or conviction has been invalidated on appeal, by habeas petition, or through a similar

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proceeding. See Heck v. Humphrey, 512 U.S. 477, 483-87 (1994). Under Heck, a party who was

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convicted of a crime is barred from bringing a suit under § 1983 if a judgment in favor of that

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party would necessarily imply the invalidity of the conviction or sentence. See Whitaker v.

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Garcetti, 486 F.3d 572, 581 (9th Cir. 2007) (citing Heck, 512 U.S. at 114).
Here, Wright’s § 1983 complaint directly attacks the validity of his criminal sentence.

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But Wright does not allege his sentence has been reversed or otherwise invalidated. Based on the

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docket in the underlying criminal case, it appears Wright appealed the conditions and length of

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supervised release imposed in 2016, the revocation of release and revocation sentence imposed in

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2017, and the denial of his request for return of seized property. (See Memo. of USCA (ECF No.

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406) in 2:14-cr-00357-APG-VCF.) But the United States Court of Appeals for the Ninth Circuit

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affirmed the conditions and length of Wright’s original supervised release, the revocation of that

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release, and the revocation sentence. (Id.) While the Ninth Circuit reversed the district court’s

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order denying Wright’s request for the return of cash seized during his arrest and remanded for

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further proceedings on that issue, which are ongoing, the gravamen of Wright’s civil-rights

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complaint is that he was framed. Given that the allegations in this case necessarily imply the

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invalidity of Wright’s sentence, the court will recommend that Wright’s complaint be dismissed

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without leave to amend.

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II.

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CONCLUSION
IT IS THEREFORE ORDERED that Wright’s application to proceed in forma pauperis

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(ECF No. 9) is GRANTED. Wright will not be required to pay the filing fee in this action.

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Wright is permitted to maintain this action to conclusion without the necessity of prepayment of

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any additional fees or costs or the giving of a security for fees or costs. This order granting leave
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to proceed in forma pauperis does not extend to the issuance of subpoenas at government

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expense.
IT IS FURTHER ORDERED that the clerk of court must file Wright’s complaint (ECF

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No. 1-1).
IT IS RECOMMENDED that Wright’s complaint be DISMISSED, with prejudice, for

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failure to state a claim upon which relief can be granted.

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III.

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NOTICE
This report and recommendation is submitted to the United States district judge assigned

to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation

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may file a written objection supported by points and authorities within fourteen days of being

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served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely

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objection may waive the right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d

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1153, 1157 (9th Cir. 1991).

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DATED: March 26, 2019

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C.W. HOFFMAN, JR.
UNITED STATES MAGISTRATE JUDGE

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