Timmons v. Las Vegas Public Defenders Office et al

Filing 5

ORDER. IT IS ORDERED that 1 Plaintiff's Application to Proceed In Forma Pauperis is HELD IN ABEYANCE. Plaintiff shall have until 8/31/2017 to withdraw his Application to Proceed In Forma Pauperis. If he does not, the court will order Plaintiff to pay the $350 filing fee and screen the complaint pursuant to 28 U.S.C. § 1915. Signed by Magistrate Judge Nancy J. Koppe on 8/1/17. (Copies have been distributed pursuant to the NEF - MR)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10
11
12
13
14
15

TOLAVIUS TIMMONS,

)
)
Plaintiff(s),
)
)
v.
)
)
LAS VEGAS PUBLIC DEFENDERS
)
OFFICE, et al.,
)
)
Defendant(s).
)
__________________________________________)

Case No. 2:17-cv-02020-RFB-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 criminal trial in

21

state court, and judicial rulings related thereto. See Docket No. 1-1 at 3-8. The relief Plaintiff seeks is both

22

monetary damages and an injunction. Id. at 11. It is well settled that a federal district court does not have

23

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

24

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

25

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

26

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

27

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

28

1

Moreover, a threshold requirement for proceeding with any § 1983 claim is that the defendants acted

2

“under color of state law” with respect to the alleged deprivation of the plaintiff’s constitutional rights.

3

West v. Atkins, 487 U.S. 42, 48 (1988). It is well established that attorneys, whether retained or appointed,

4

do not act “under color of state law” in representing a plaintiff in a criminal proceeding. See, e.g., Polk

5

County v. Dodson, 454 U.S. 312, 318-19 & n.7 (1981).

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

Based upon the foregoing, IT IS ORDERED that:

14

1.

15
16

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

2.

Plaintiff shall have until August 31, 2017 to withdraw his Application to Proceed In Forma

17

Pauperis. If he does not, the court will order Plaintiff to pay the $350 filing fee and screen

18

the complaint pursuant to 28 U.S.C. § 1915.

19
20
21

Dated: August 1, 2017
_____________________________________
Nancy J. Koppe
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
2