Collins v. State of Nevada et al

Filing 3

ORDER granting 1 Application for Leave to Proceed in forma pauperis. IT IS FURTHER ORDERED that the clerk of court must detach and file Collins' complaint (ECF No. 1 -2) as a separate entry on the docket. IT IS FURTHER ORDERED that C ollins' complaint is DISMISSED without prejudice and with leave to amend. If Plaintiff chooses to amend his complaint, he must do so by November 13, 2020. Signed by Magistrate Judge Brenda Weksler on 10/14/2020. (Copies have been distributed pursuant to the NEF - HAM)

Case 2:20-cv-01393-RFB-BNW Document 3 Filed 10/14/20 Page 1 of 5

1
2
3
4
5
6
UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9
Anthony Dion Collins,

10

Case No. 2:20-cv-01393-RFB-BNW

Plaintiff,

11

ORDER
v.

12

State of Nevada, et al.,

13

Defendants.

14
15

This matter is before the court on federal-prison inmate Anthony Dion Collins’
16
application to proceed in forma pauperis (ECF No. 1), filed on July 27, 2020. Collins brings a
17

lawsuit under 42 U.S.C. § 1983, Bivens,1 and “the common law” for the violations of his Fifth,

18
Sixth, and Eighth Amendment rights against Attorney General Aaron Ford, Governor Steven
19
Sisolak, and the United States Department of Probation. He alleges that his sentence in Nevada
20
federal case 2:95-cr-216-LDG-RJJ is based on erroneous information, and therefore incorrect.
21
(Compl. (ECF No. 1-2).) Specifically, Collins alleges he received a sentencing enhancement in
22
his federal case (resulting in a life-sentence) based on a state conviction he disputes as invalid.
23
I.

IN FORMA PAUPERIS APPLICATION

24
Collins submitted the affidavit required by 28 U.S.C. § 1915(a) showing an inability to
25
26

prepay fees or costs or give security for them. Accordingly, the court will grant Collins’ request
to proceed in forma pauperis. The court now screens Collins’ complaint.

27
28

1

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

Case 2:20-cv-01393-RFB-BNW Document 3 Filed 10/14/20 Page 2 of 5

1

II.

SCREENING
Courts must conduct a preliminary screening in any case in which a prisoner seeks redress

2
3

from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

4

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

5

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

6

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

7

(2). In addition to the screening requirements under § 1915A, a federal court must dismiss a

8

claim if it “fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2); accord

9

Fed. R. Civ. Proc. 12(b)(6). Review under 28 U.S.C. § 1915(e)(2) does not require that the

10

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

11
12

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

13

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

14

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

15

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

16

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

17

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

18

(9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
In considering whether the complaint is sufficient to state a claim, all allegations of

19
20

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

21

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

22

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

23

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

24
25
26
27
28

2

Based on several appellate requests for a sentence reduction, on May 8, 2020, Judge Mahan granted
Collins a sentence of credit for time served. 2:29-cr-216-JCM-RJJ, ECF No. 170. Given Judge Mahan’s
order, Collins may no longer be incarcerated. Thus, the screening may not fall under 28 U.S.C.
§ 1915A(a). Still, 28 U.S.C. § 1915(e)(2)(B)(i), which is not limited to prisoners, requires the sua sponte
dismissal of an IFP plaintiff’s case if it “(i) is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”
See Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam).

Page 2 of 5

Case 2:20-cv-01393-RFB-BNW Document 3 Filed 10/14/20 Page 3 of 5

1

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

2

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

3

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

4

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

5

Here, Collin seeks damages under 42 U.S.C. § 1983, Bivens, and “the common law” based

6

on violations of his constitutional rights in both state court and federal court criminal proceedings.

7

First, as part of Claim One, he takes issue with a Nevada state conviction (Case No. C-109813),

8

as he claims that “[he] never caught a case in October of 1993” and that he was coerced to enter

9

into that plea. ECF No.1-1 at 2. He explains that this conviction was later used to enhance a

10

sentence (to a life sentence) in federal case No. 2:95-cr-216-LDG-RJJ, which is the basis for

11

Claim Two.3
If a Section 1983 case seeking damages alleges constitutional violations that would

12
13

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

14

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

15

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

16

who was convicted of a crime is barred from bringing a suit under Section 1983 if a judgment in

17

favor of that party would necessarily imply the invalidity of the conviction or sentence. See

18

Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007) (citing Heck, 512 U.S. at 114).
Collins’ complaint directly attacks the validity of his state criminal conviction and the

19
20

sentence in his federal case. That is, he alleges that he was coerced into pleading guilty in state

21

court and then alleges that his federal sentence was improperly enhanced based on that state

22

conviction. But, critically, Collins does not allege that either his state conviction or federal

23

sentence were reversed or otherwise invalidated.4 Given that Plaintiff’s Section 1983 claim

24

necessarily implies the invalidity of Collins’ state conviction and federal sentence, Plaintiff must

25
26
27
28

3

The court notes that based on several appellate requests for a sentence reduction, on May 8, 2020 Judge
Mahan granted Plaintiff time served. As such, Plaintiff is no longer subject to that life-sentence. 2:29-cr216-JCM-RJJ, ECF No. 170.
4
It is important to note that Judge Mahan did not invalidate the prior sentence—he simply re-sentenced
him based on new legislation authorizing such reductions. 2:29-cr-216-JCM-RJJ, ECF No. 170.

Page 3 of 5

Case 2:20-cv-01393-RFB-BNW Document 3 Filed 10/14/20 Page 4 of 5

1

plead that his state conviction or federal sentence have been invalidated or reversed to bring these

2

claims. Accordingly, the Court will dismiss Plaintiff’s complaint without prejudice and with

3

leave to amend. If Plaintiff can truthfully plead that his state conviction or federal sentence have

4

been invalidated, he may amend his complaint.
It is worth noting that Plaintiff fares no better under a Bivens claim. The Ninth Circuit has

5
6

stated that “[a]ctions under § 1983 and those under Bivens are identical save for the replacement

7

of a state actor under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406,

8

409 (9th Cir.1991). In addition, the Ninth Circuit has held that the rationale of Heck applies to

9

Bivens actions. Martin v. Sias, 88 F.3d774 (9th Cir. 1996).
Lastly, the Supreme Court likened Section 1983 claims to common law tort actions for

10
11

malicious prosecution when deciding Heck. Thus, the Supreme Court necessarily considered

12

common law claims and still required the plaintiff to allege and prove the termination of the prior

13

criminal proceeding in his favor as an element of his claim. Heck, 512 U.S. at 484-86.

14

Given that Plaintiff cannot proceed unless he can truthfully allege that his state conviction

15

or federal sentence have been invalidated, the court does not address other remaining issues in the

16

complaint involving the capacity in which he sues each defendant, whether defendants were

17

acting under color of state law, or whether any immunity applies.

18

III.

19

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

20

(ECF No. 1) is GRANTED. Collins will not be required to pay the filing fee in this action.

21

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

22

any additional fees or costs or the giving of a security for fees or costs. This order granting leave

23

to proceed in forma pauperis does not extend to the issuance of subpoenas at government

24

expense.

25
26

IT IS FURTHER ORDERED that the clerk of court must detach and file Collins’
complaint (ECF No. 1-2) as a separate entry on the docket.

27
28
Page 4 of 5

Case 2:20-cv-01393-RFB-BNW Document 3 Filed 10/14/20 Page 5 of 5

1

IT IS FURTHER ORDERED that Collins’ complaint is DISMISSED without prejudice

2

and with leave to amend. If Plaintiff chooses to amend his complaint, he must do so by November

3

13, 2020.

4

DATED: October 14, 2020

5
6
7

BRENDA WEKSLER
UNITED STATES MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 5 of 5