Muric-Dorado v. Dzurenda ( 2019 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 RAMON MURIC-DORADO, Case No. 2:19-cv-00238-RFB-NJK 4 Plaintiff SCREENING ORDER 5 v. 6 JAMES DZURENDA et al., 7 Defendants 8 9 Plaintiff, who is in the custody of the Nevada Department of Corrections (“NDOC”), 10 has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983 and has filed an 11 application to proceed in forma pauperis. (ECF Nos. 1-1, 4). The Court now screens 12 Plaintiff’s civil rights complaint pursuant to 28 U.S.C. § 1915A and addresses the 13 application. 14 I. IN FORMA PAUPERIS APPLICATION 15 Plaintiff’s application to proceed in forma pauperis is granted. (ECF No. 4). Based 16 on the information regarding Plaintiff’s financial status, the Court finds that Plaintiff is not 17 able to pay an initial installment payment toward the full filing fee pursuant to 28 U.S.C. § 18 1915. Plaintiff will, however, be required to make monthly payments toward the full 19 $350.00 filing fee when he has funds available. 20 II. SCREENING STANDARD 21 Federal courts must conduct a preliminary screening in any case in which an 22 incarcerated person seeks redress from a governmental entity or officer or employee of 23 a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify 24 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 25 claim upon which relief may be granted, or seek monetary relief from a defendant who is 26 immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings, however, must be 27 liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 28 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 1 (1) the violation of a right secured by the Constitution or laws of the United States, and 2 (2) that the alleged violation was committed by a person acting under color of state law. 3 See West v. Atkins, 487 U.S. 42, 48 (1988). 4 In addition to the screening requirements under § 1915A, pursuant to the Prison 5 Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s 6 claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails 7 to state a claim on which relief may be granted, or seeks monetary relief against a 8 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a 9 complaint for failure to state a claim upon which relief can be granted is provided for in 10 Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under 11 § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a 12 court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 13 the complaint with directions as to curing its deficiencies, unless it is clear from the face 14 of the complaint that the deficiencies could not be cured by amendment. See Cato v. 15 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 16 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 17 Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to 18 state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 19 support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 20 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all 21 allegations of material fact stated in the complaint, and the court construes them in the 22 light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th 23 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 24 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While 25 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 26 must provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 27 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 28 insufficient. Id. 1 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 2 that, because they are no more than mere conclusions, are not entitled to the assumption 3 of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide 4 the framework of a complaint, they must be supported with factual allegations.” Id. “When 5 there are well-pleaded factual allegations, a court should assume their veracity and then 6 determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining 7 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 8 requires the reviewing court to draw on its judicial experience and common sense.” Id. 9 Finally, all or part of a complaint filed by an incarcerated person may therefore be 10 dismissed sua sponte if that person’s claims lack an arguable basis either in law or in fact. 11 This includes claims based on legal conclusions that are untenable (e.g., claims against 12 defendants who are immune from suit or claims of infringement of a legal interest which 13 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 14 fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327–28 (1989); 15 see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 16 III. SCREENING OF COMPLAINT 17 In the complaint, Plaintiff sues multiple defendants for events that took place while 18 Plaintiff was at the Northern Nevada Correctional Center (“NNCC”). (ECF No. 1-1 at 1). 19 Plaintiff sues Defendants James Dzurenda, James G. Cox, Baca, NDOC, Mary Flores, 20 Division of Parole and Probation for Nevada, Sgt. Waters, Peterson, Nancy Porter, 21 Moses, Ken Bradshaw, Nevada Board of Parole Commissioners, Connie S. Bisbee, Tony 22 Corda, Susan Jackson, and Does. Id. at 4-8. Plaintiff alleges three counts and seeks 23 declaratory and monetary relief. Id. at 11, 35-37. 24 The complaint generally alleges that prison officials failed to correctly calculate 25 Plaintiff’s good-time credits and, as a result, unlawfully restrained and falsely imprisoned 26 Plaintiff past his sentence expiration date. See generally ECF No. 1-1. Plaintiff’s prison 27 sentence expired on April 17, 2017, but he believes that his sentence should have expired 28 in 2016. Id. at 9-10. Plaintiff learned about his miscalculated credits in April 2017. Id. at 1 9. In Counts I through III, Plaintiff alleges violations of Nevada Constitution Article 4, § 2 17 and Article 1, § 8; NRS §§ 200.417, 200.481, and 179.11635; and the Fifth, Sixth, 3 Eighth, and Fourteenth Amendments of the U.S. Constitution. Id. at 9-11. 4 In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that “in order 5 to recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for 6 other harm caused by actions whose unlawfulness would render a conviction or sentence 7 invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed 8 on direct appeal, expunged by executive order, declared invalid by a state tribunal 9 authorized to make such determination, or called into question by a federal court’s 10 issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Id. at 486-87. “A claim for 11 damages bearing that relationship to a conviction or sentence that has not been . . . 12 invalidated is not cognizable under § 1983.” Id. at 487. “Thus, when a state prisoner 13 seeks damages in a § 1983 suit, the district court must consider whether a judgment in 14 favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if 15 it would, the complaint must be dismissed unless the plaintiff can demonstrate that the 16 conviction or sentence has already been invalidated.” Id. 17 In this case, Plaintiff is implicating the validity of his prior sentence. The Court 18 acknowledges that, if it were to dismiss this case and direct Plaintiff to file a habeas corpus 19 petition, Plaintiff could not do so because he is no longer “in custody” for the sentence 20 that he is challenging. See 28 U.S.C.A. § 2254 (stating that “[t]he Supreme Court, a 21 Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of 22 habeas corpus in behalf of a person in custody pursuant to the judgment of a State court 23 only on the ground that he is in custody in violation of the Constitution or laws or treaties 24 of the United States.”); Maleng v. Cook, 490 U.S. 488, 492 (1989) (holding that a person 25 is not “in custody” under a conviction after the sentence imposed for it has fully expired). 26 In Guerrero v. Gates, 442 F.3d 697 (9th Cir. 2006), the Ninth Circuit discussed 27 exceptions to Heck’s bar for plaintiffs no longer in custody. Id. at 704. The Ninth Circuit 28 explained the following: 1 Although we held in Nonnette1 that the plaintiff could bring § 1983 claims despite the Heck bar because habeas relief was unavailable, we did 2 so because Nonnette, unlike Cunningham, timely pursued appropriate relief 3 from prior convictions. Nonnette was founded on the unfairness of barring a plaintiff’s potentially legitimate constitutional claims when the individual 4 immediately pursued relief after the incident giving rise to those claims and could not seek habeas relief only because of the shortness of his prison 5 sentence. In reversing the district court’s dismissal of Nonnette’s § 1983 6 claims, we stated: The fact that Nonnette has been released from the incarceration that 7 his civil suit, if successful, would impugn, and that a habeas petition would be moot for that reason, differentiates this case from our recent decision in 8 Cunningham v. Gates2. In Cunningham, the plaintiff brought a civil suit that 9 would have impugned the conviction for which he was still incarcerated; habeas corpus was unavailable only because he had let the time for such 10 a petition expire. Under those circumstances, we declined to take the case out of the rule of Heck. 11 Thus, a § 1983 plaintiff’s timely pursuit of available habeas relief is 12 important. Even so, we emphasized that Nonnette's relief from Heck “affects only former prisoners challenging loss of good-time credits, 13 revocation of parole or similar matters,” not challenges to an underlying conviction such as those Guerrero brought. 14 We find Guerrero’s situation to resemble Cunningham more closely 15 than Nonnette. Guerrero never challenged his convictions by any means prior to filing this lawsuit. Nearly three years passed from his last encounter 16 with the LAPD before he took any action at all. His failure timely to achieve habeas relief is self-imposed. Thus, as in Cunningham, though habeas 17 relief for Guerrero may be “impossible as a matter of law,” we decline to 18 extend the relaxation of Heck’s requirements. Guerrero cannot now use his “failure timely to pursue habeas remedies” as a shield against the 19 implications of Heck. Accordingly, we hold that Heck bars Guerrero’s § 1983 claims of wrongful arrest, malicious prosecution, and conspiracy. 20 Id. at 705. 21 The Court finds that Heck bars Plaintiff’s claims in this case. Plaintiff chose not to 22 file a habeas corpus petition on this issue while incarcerated and instead decided to 23 pursue monetary damages on the issue almost two years after his challenged sentence 24 expired. As such, Plaintiff’s case is more similar to Cunningham and Guerrero rather than 25 Nonnette because Plaintiff waited years to challenge the application of good-time credits 26 27 1 Nonnette v. Small, 316 F.3d 872 (9th Cir. 2002). 28 2 Cunningham v. Gates, 312 F.3d 1148 (9th Cir. 2002), as amended on denial of reh’g (Jan. 14, 2003). 1 to his expired sentence. As such, Heck bars Plaintiff’s claims and the Court dismisses 2 this case, with prejudice, as amendment would be futile for failure to state a claim. 3 IV. CONCLUSION 4 For the foregoing reasons, IT IS ORDERED that Plaintiff’s application to proceed 5 in forma pauperis (ECF No. 4) without having to prepay the full filing fee is GRANTED. 6 Plaintiff shall not be required to pay an initial installment fee. Nevertheless, the full filing 7 fee shall still be due, pursuant to 28 U.S.C. § 1915, as amended by the Prison Litigation 8 Reform Act. The movant herein is permitted to maintain this action to conclusion without 9 the necessity of prepayment of fees or costs or the giving of security therefor. This order 10 granting in forma pauperis status shall not extend to the issuance and/or service of 11 subpoenas at government expense. 12 IT IS FURTHER ORDERED THAT, pursuant to 28 U.S.C. § 1915, as amended by 13 the Prison Litigation Reform Act, the Nevada Department of Corrections shall pay to the 14 Clerk of the United States District Court, District of Nevada, 20% of the preceding month's 15 deposits to the account of Ramon Muric-Dorado, #77774 (in months that the account 16 exceeds $10.00) until the full $350 filing fee has been paid for this action. The Clerk of 17 the Court shall send a copy of this order to the Finance Division of the Clerk’s Office. The 18 Clerk shall send a copy of this order to the attention of Chief of Inmate Services for the 19 Nevada Department of Prisons, P.O. Box 7011, Carson City, NV 89702. 20 IT IS FURTHER ORDERED THAT, even if this action is dismissed, or is otherwise 21 unsuccessful, the full filing fee shall still be due, pursuant to 28 U.S.C. §1915, as amended 22 by the Prison Litigation Reform Act. 23 IT IS FURTHER ORDERED THAT the Clerk of the Court file the complaint (ECF 24 No. 1-1) and send Plaintiff a courtesy copy. 25 IT IS FURTHER ORDERED that the complaint (ECF No. 1-1) is dismissed in its 26 entirety with prejudice as amendment would be futile for failure to state a claim. 27 IT IS FURTHER ORDERED that this Court certifies that any in forma pauperis 28 appeal from this order would not be taken “in good faith” pursuant to 28 U.S.C. § 1} 1915(a)(3). 2 It is further ordered that the Clerk of the Court shall close the case and enter judgment accordingly. 4 5 DATED THIS 22"4 day of November 2019. 6 RICHARD F. AS i 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-