Marcelli v. Edwards et al

Filing 7

ORDER adopting and accepting in its entirety ECF No. 3 Report and Recommendation; granting Plaintiff's ECF No. 1 IFP application - NDOC to pay Clerk from inmate account (copy of order sent to Finance and NDOC Chief of Inmate Se rvices); directing Clerk to file the ECF No. 1 -1 Complaint; dismissing with/without prejudice the complaint; directing Clerk to administratively close case. Signed by Judge Miranda M. Du on 5/24/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ANTHONY MICHAEL MARCELLI,
Plaintiff,

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v.
JERRY EDWARDS, et al.,

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Case No. 3:14-cv-00559-MMD-WGC
ORDER REGARDING REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE
WILLIAM G. COBB

Defendants.

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I.

SUMMARY

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Before the Court is the Report and Recommendation of United States Magistrate

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Judge William G. Cobb (ECF no. 3) (“R&R”) relating to Plaintiff Anthony Michael

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Marcelli’s (“Marcelli”) Application for Leave to Proceed in Forma Pauperis (“IFP

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Application”). (ECF No. 1.) The Court has reviewed Plaintiff’s objections (ECF Nos. 4-6).

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For the reasons below, the R&R is adopted in full.

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II.

BACKGROUND

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Marcelli, an inmate at the Northern Nevada Correctional Center, filed an IFP

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Application in a suit involving several alleged constitutional violations stemming from his

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arrest and conviction in 2011. (ECF No. 1.) Marcelli’s complaint alleges a number of

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problems with his arrest, including, among other things, a lack of a warrant, a failure to

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inform him of his Miranda rights, and the unlawful seizure of his property. (ECF No. 1-1

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at 4.) He also alleges various constitutional violations in connection with his pretrial

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detention, plea, conviction, and appeal. (Id. at 5-8.)

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The Magistrate Judge took judicial notice of the following facts: Marcelli entered a

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no contest plea to the charge of attempting to make threats or convey false information

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concerning acts of terrorism, weapons of mass destruction, lethal weapons or toxins. A

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judgment of conviction was entered on May 25, 2011, after which Marcelli filed a direct

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appeal. The Nevada Supreme Court affirmed his conviction on March 7, 2012. Marcelli

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then filed a state habeas petition which was denied. The denial was affirmed by the

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Nevada Supreme Court. (ECF No. 3 at 6.)

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The Magistrate Judge issued an R&R recommending this Court grant Marcelli’s

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IFP Application and dismiss Marcelli’s complaint. (ECF No. 3 at 14-15.) The R&R finds

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that each of Marcelli’s claims fail. The Magistrate Judge found that Marcelli’s unlawful

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seizure, false arrest, false imprisonment, and speedy trial claims are barred by the

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applicable two-year statute of limitations. (Id. at 8, 9, 12.) Marcelli’s allegations regarding

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due process violations based on fabricated evidence are barred by Heck. (Id. at 10.) The

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malicious prosecution claims have not yet accrued because the criminal proceedings

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against Marcelli have not been terminated in his favor, and even if they had, three

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named defendants are protected by immunity doctrines. (Id. at 11.) His Fifth

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Amendment, Miranda, ineffective assistance of counsel and Equal Protection Clause

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claims are either uncognizable or unsupported by his allegations. (Id. at 12-14.) Lastly,

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the Magistrate Judge recommends this Court decline to exercise supplemental

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jurisdiction over any remaining state law claims. (Id. at 14.)

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Marcelli filed three objections.1 (ECF. Nos. 4-6.) A large portion of Marcelli’s

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objections consist of the repeated allegation that judicial officers involved in his arrest

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and conviction were not bonded, in violation of the Nevada Constitution. (See ECF No. 4

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ECF No. 5 and ECF No. 6 appear to be identical documents, except that ECF
No. 5 contains additional exhibits.
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at 2; ECF No. 5 at 3.) Marcelli also argues that his claims are not time barred because

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he has been pursuing them for four years continuously. (ECF No. 4 at 2.) Additionally,

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Marcelli makes two corrections to his complaint, now alleging that his first arrest took

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place on January 26, 2011, and that the most recent act of vindictive prosecution took

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place on February 24, 2014. (ECF No. 5 at 3.) He further argues that it is improper to

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apply Nevada’s two year personal injury statute of limitations to his constitutional claims,

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and that the Magistrate Judge was incorrect in concluding that he had not pled facts

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which would support an Equal Protection claim. (Id. at 5-6.)

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III.

LEGAL STANDARD

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s R&R, then the court is required to “make a de novo

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determination of those portions of the [R&R] to which objection is made.” 28 U.S.C. §

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636(b)(1). In light of Marcelli’s objections, the Court has engaged in a de novo review to

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determine whether to adopt Magistrate Judge Cobb’s recommendations.

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28 U.S.C. § 1915A requires that the court “review, before docketing, if feasible, or,

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in any event, as soon as practicable after docketing, a complaint in a civil action in which

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

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governmental entity.” 28 U.S.C. § 1915A(a). “[T]he court shall identify cognizable claims

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or dismiss the complaint, or any portion of the complaint, if the complaint ― (1) is

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frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2)

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seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §

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1915A(b).

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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which

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relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must

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provide “a short and plain statement of the claim showing that the pleader is entitled to

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relief.” Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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The Rule 8 notice pleading standard requires Plaintiff to “give the defendant fair notice of
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what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555

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(internal quotation marks and citation omitted). While Rule 8 does not require detailed

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factual allegations, it demands more than “labels and conclusions” or a “formulaic

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recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough to rise

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above the speculative level.” Twombly, 550 U.S. at 555. When determining the

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sufficiency of a claim, “[w]e accept factual allegations in the complaint as true and

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construe the pleadings in the light most favorable to the non-moving party[; however, this

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tenet does not apply to] . . . legal conclusions . . . cast in the form of factual allegations.”

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Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citation and internal quotation

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marks omitted). Thus, to survive a motion to dismiss, a complaint must contain sufficient

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factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at

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678 (internal quotation marks omitted).

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In Iqbal, the Supreme Court clarified the two-step approach district courts are to

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apply when considering motions to dismiss. First, a district court must accept as true all

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well-pleaded factual allegations in the complaint; however, legal conclusions are not

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entitled to the assumption of truth. Iqbal, 556 U.S. at 679. Mere recitals of the elements

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of a cause of action, supported only by conclusory statements, do not suffice. Id. at 678.

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Second, a district court must consider whether the factual allegations in the complaint

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allege a plausible claim for relief. Id. at 679. A claim is facially plausible when the

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plaintiff’s complaint alleges facts that allow a court to draw a reasonable inference that

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the defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does

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not permit the court to infer more than the mere possibility of misconduct, the complaint

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has “alleged ― but not shown ― that the pleader is entitled to relief.” Id. at 679 (internal

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quotation marks omitted). When the claims in a complaint have not crossed the line from

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conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570. A

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complaint must contain either direct or inferential allegations concerning “all the material

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elements necessary to sustain recovery under some viable legal theory.” Id. at 562

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(quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1989)).

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Mindful of the fact that the Supreme Court has “instructed the federal courts to

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liberally construe the ‘inartful pleading’ of pro se litigants,” Eldridge v. Block, 832 F.2d

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1132, 1137 (9th Cir. 1987), the Court will view Marcelli’s pleadings with the appropriate

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degree of leniency.

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IV.

DISCUSSION

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The Court agrees with the Magistrate Judge’s recommendation to dismiss

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Marcelli’s complaint with prejudice, except with respect to his malicious prosecution and

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due process claims based on falsified evidence, which will be dismissed without

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prejudice.

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A.

Due Process Claims

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In his complaint, Marcelli asserts that he has also filed a habeas petition raising

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claims of actual innocence, due process violations, ineffective assistance of counsel, and

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the issue of unbonded officials. (ECF no. 1-1 at 9-10.) He states that his habeas petition

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is still pending. (Id. at 10.)

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The R&R correctly concluded that Marcelli cannot bring a suit for damages or

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injunctive relief via 42 U.S.C. § 1983 insofar as the underlying issues are based on the

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notion that his conviction was unconstitutional. In Heck v. Humphrey, 512 U.S. 477, 489-

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90 (1994), the Supreme Court held that "a § 1983 cause of action for damages

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attributable to an unconstitutional conviction or sentence does not accrue until the

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conviction or sentence has been invalidated." As a prerequisite to pursuing relief for his

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due process claims, Marcelli must show that his conviction has been invalidated.

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Because he has failed to do so, the R&R properly found that his due process claims fail.

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B.

Statute of Limitations
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The R&R identified the correct statute of limitations

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Marcelli argues that he has filed constitutional claims, rather than personal injury

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claims, and therefore the Magistrate Judge erred in applying Nevada’s two-year statute
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of limitations to his § 1983 claims. (ECF No. 5 at 5.) As the Magistrate Judge clearly

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explained, Supreme Court precedent directs lower courts to apply state personal injury

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statutes of limitation when evaluating § 1983 claims. See Wilson v. Garcia, 471 U.S.

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261, 280 (1985) (“In view of our holding that § 1983 claims are best characterized as

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personal injury actions, the Court of Appeals correctly applied [state personal injury

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statute of limitations].”) In Nevada, the statute of limitations for personal injury claims,

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and therefore § 1983 actions, is two years. NRS § 11.190(4)(e). The R&R identified the

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appropriate statute of limitations.

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2.

The R&R correctly applied the statute of limitations to
Marcelli’s claims

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Next, Marcelli argues that his claims are not time barred because of “the past 4

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(four) years of continuous litigation involving these defendant officials being a continuous

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act of ‘due diligence’ still resulting in no relief at all.” (ECF No. 4 at 2.) Additionally, he

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now asserts that an evidentiary hearing which occurred on February 24, 2014, should be

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considered the most recent instance of “vindictive prosecution and violations by the ever

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so ‘unbonded’ defendants.” (ECF No. 5 at 3.)

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To the extent that Marcelli believes that the February 24, 2014, hearing is another

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example of a due process violation, because officials are unbonded or have fabricated

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evidence which they used against him, his claims are barred by Heck for the reasons

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discussed above and discussed in further detail in the R&R.

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To the extent that Marcelli is arguing that his unlawful seizure, false arrest, false

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imprisonment, and speedy trial claims have somehow been tolled while he has appealed

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his conviction and filed a petition for habeas corpus, that argument also fails. The statute

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of limitations for a claim of false arrest or illegal seizure begins to run on the date of the

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underlying arrest or seizure. See Matthews v. Macanas, 990 F.2d 467, 469 (9th Cir.

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1993). The statute of limitations for a false imprisonment claim like the one Marcelli

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seeks to bring begins to run when a victim is bound over by a magistrate or arraigned.

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Wallace v. Kato, 549 U.S. 384, 389 (2007). The statute of limitations for a claim involving
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a speedy trial violation would similarly have begun to run sometime in 2011, before

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Marcelli’s judgment of conviction was entered. A civil rights claim under § 1983 is a

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separate claim from any habeas claim and from any arguments raised in a defendant’s

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direct appeals of his conviction.

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Marcelli’s argument that he raised these issues, unsuccessfully, during the last

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four years is unavailing. The R&R correctly applied the applicable statute of limitations to

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each of these claims, and the Court agrees that they should be dismissed with prejudice.

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C.

Equal Protection

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Lastly, Marcelli argues that the R&R is incorrect in concluding that he did not

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plead facts which, taken as true, would support a claim under the Equal Protection

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Clause of the Fourteenth Amendment. In support of his position, Marcelli repeats his

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allegations that various officials lacked bonds and prosecuted him maliciously and that

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his conviction was not supported by any evidence.

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While it is true that in limited circumstances a malicious prosecution claim may be

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cognizable under the Fourteenth Amendment, such a claim still requires a plaintiff to

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show that criminal proceedings against him were terminated in his favor. See Lacey v.

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Maricopa Cty., 693 F.3d 896, 919 (9th Cir. 2012) As discussed in the R&R, Marcelli

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cannot make such a showing. Marcelli’s allegations do not contain any other

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prerequisites for an Equal Protection claim, such as the assertion that he was treated

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differently than a similarly situated person. Therefore, the Court agrees with the R&R

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that Marcelli has failed to state a claim based on the Equal Protection Clause.

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D.

Additional Arguments

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Marcelli made several arguments and cited to several cases not discussed above.

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Mindful of his pro se status, the Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of this

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Order. The Court has also reviewed the R&R’s reasoning in total, even where it was not

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objected to by Marcelli, and agrees with its conclusions.

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V.

CONCLUSION
It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge William G. Cobb (ECF No. 3) be accepted and

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adopted in whole.

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It is ordered that Plaintiff's application to proceed in forma pauperis (ECF No. 1) is

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granted. Pursuant to 28 U.S.C. § 1915(b), Plaintiff is still required to pay the full amount

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of the filing fee over time. Because his average monthly balance is zero, he need not

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pay an initial partial payment. In any month in which his balance exceeds $10, he should

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be required to pay twenty percent of that month's income until such time as the filing fee

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is paid in full.

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The Clerk is directed to file the complaint (ECF No. 1-1).

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It is further ordered that the Complaint (ECF No. 1-1) is dismissed with prejudice

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except as to the malicious prosecution claims and due process claims related to

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allegedly fabricated evidence, which are dismissed without prejudice. These claims are

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dismissed with prejudice, however, against the prosecutorial defendants Mills and Winn

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(insofar as Plaintiff has alleged they erred in initiating and presenting the State's case),

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and as to Judge Robert Estes.

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The Clerk is ordered to administratively close this case.

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DATED THIS 24th day of May 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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