McKnight v. Nevada Board of Parole Commissioners et al

Filing 4

ORDER DISMISSING CASE. Motion to Proceed IFP 1 is DENIED. This action is DISMISSED WITH PREJUDICE. Clerk shall enter judgment accordingly. This Court CERTIFIES that any IFP appeal would not be taken "in good faith". Clerk shall send plaintiff 2 copies of IFP application form, 2 copies of blank habeas form, and 1 copy of instructions for each (sent 7/1/13). Plaintiff may file habeas petition and IFP application in new action, but may not file further documents in this action. Signed by Judge Miranda M. Du on 7/1/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARCEL McKNIGHT,

Case No. 3:13-cv-00111-MMD-VPC

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Plaintiff,

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ORDER

v.
NEVADA BOARD OF PAROLE
COMMISSIONERS, et al.,
Defendants.

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This matter comes before the Court on plaintiff’s pro se civil rights complaint and

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application to proceed in forma pauperis.

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I.

IN FORMA PAUPERIS APPLICATION

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Plaintiff has filed an application to proceed in forma pauperis. (Dkt. no. 1.) In

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seeking pauper status, plaintiff has failed to use the form provided by the Court

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pursuant to Local Rule LSR 1-1. Additionally, under 28 U.S.C. § 1915(a)(2) and Local

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Rule LSR 1-2, plaintiff must attach both an inmate account statement for the past six (6)

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months and a properly executed financial certificate. Petitioner has not submitted either

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an inmate account statement or a financial certificate signed by the appropriate prison

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official. The Court denies plaintiff’s application to proceed in forma pauperis.

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Additionally, the Court dismisses this action because the complaint fails to state a

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colorable civil rights claim, and amendment would be futile, as discussed later in this

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order.

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II.

SCREENING STANDARD

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

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify

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any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a

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claim upon which relief may be granted or seek monetary relief from a defendant who is

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immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings, however,

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must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d. 696, 699 (9th

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Cir. 1988).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two

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essential elements: (1) that a right secured by the Constitution or laws of the United

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States was violated, and (2) that the alleged violation was committed by a person acting

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under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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In addition to the screening requirements under § 1915A, pursuant to the Prison

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Litigation Reform Act of 1995 (PLRA), a federal court must dismiss a prisoner’s claim, “if

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the allegation of poverty is untrue,” or if the action “is frivolous or malicious, fails to state

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a claim on which relief may be granted, or seeks monetary relief against a defendant

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who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for

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failure to state a claim upon which relief can be granted is provided for in Federal Rule

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of Civil Procedure 12(b)(6), and the court applies the same standard under § 1915 when

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reviewing the adequacy of a complaint or an amended complaint. When a court

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dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the

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complaint with directions as to curing its deficiencies, unless it is clear from the face of

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the complaint that the deficiencies could not be cured by amendment. See Cato v.

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

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Review under Rule 12(b)(6) is essentially a ruling on a question of law. See

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Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal

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for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any

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set of facts in support of the claim that would entitle him or her to relief. See Morley v.
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Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes

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as true all allegations of material fact stated in the complaint, and the court construes

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them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d

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955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent

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standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5,

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9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). While the standard

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under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide

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more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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

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Id.; see Papasan v. Allain, 478 U.S. 265, 286 (1986).

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Additionally, a reviewing court should “begin by identifying pleadings [allegations]

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that, because they are no more than mere conclusions, are not entitled to the

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assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal

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conclusions can provide the framework of a complaint, they must be supported with

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factual allegations.” Id. “When there are well-pleaded factual allegations, a court should

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assume their veracity and then determine whether they plausibly give rise to an

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entitlement to relief.” Id. “Determining whether a complaint states a plausible claim for

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relief [is] a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id.

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Finally, all or part of a complaint filed by a prisoner may therefore be dismissed

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sua sponte if the prisoner’s claims lack an arguable basis either in law or in fact. This

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includes claims based on legal conclusions that are untenable (e.g., claims against

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defendants who are immune from suit or claims of infringement of a legal interest which

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clearly does not exist), as well as claims based on fanciful factual allegations (e.g.,

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fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28

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(1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

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III.

SCREENING OF THE COMPLAINT

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In the complaint, plaintiff brings action against the Nevada Board of Parole

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Commissioners. Plaintiff’s allegations challenge the conviction for which he is now

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incarcerated. In addition to damages, plaintiff seeks an order from this Court restoring

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his good-time credits, rescinding an order of parole revocation, and enjoin an extradition

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order.

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When a prisoner challenges the legality or duration of his custody, or raises a

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constitutional challenge which could entitle him to an earlier release, his sole federal

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remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v.

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Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). When seeking

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damages for an allegedly unconstitutional conviction or imprisonment, “a § 1983 plaintiff

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must prove that the conviction or sentence has been reversed on direct appeal,

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expunged by executive order, declared invalid by a state tribunal authorized to make

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such determination, or called into question by a federal court’s issuance of a writ of

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habeas corpus, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 487-88 (1994).

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“A claim for damages bearing that relationship to a conviction or sentence that has not

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been so invalidated is not cognizable under § 1983.” Id. at 488. Plaintiff has not alleged

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that his conviction has been reversed or otherwise invalidated. Plaintiff fails to state a

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cognizable civil rights claim. Because amendment would be futile, this action is being

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dismissed with prejudice and without leave to amend. To the extent that plaintiff seeks

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to challenge the conviction under which he is incarcerated, he may do so by filing the

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form habeas petition provided by the court, in a new action, as specified below.

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IV.

IT IS THEREFORE ORDERED that petitioner’s motion to proceed in forma

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CONCLUSION

pauperis (dkt. no. 1) is DENIED.
IT IS FURTHER ORDERED that this civil rights action is DISMISSED WITH

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PREJUDICE.

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IT IS FURTHER ORDERED that the Clerk of Court SHALL ENTER JUDGMENT

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accordingly.

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IT IS FURTHER ORDERED that this Court CERTIFIES that any in forma

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pauperis appeal from this order would not be taken “in good faith” pursuant to 28 U.S.C.

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§ 1915(a)(3).

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IT FURTHER IS ORDERED that the Clerk of the Court shall send plaintiff two (2)

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copies of an in forma pauperis application form for a prisoner, two (2) copies of a blank

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28 U.S.C. § 2254 habeas corpus petition form, and one (1) copy of instructions for the

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each.

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IT IS FURTHER ORDERED that plaintiff may file a habeas corpus petition and in

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forma pauperis application in a new action, but he may not file further documents in this

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action.

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DATED THIS 1st day of July 2013.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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