1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 KENNETH FRIEDMAN, Case No. 2:19-cv-00705-APG-BNW

7 Plaintiff, Order 8 v.

9 ELISSA LUZAICH et al.,

10 Defendants.

11 12 Presently before the Court is plaintiff Kenneth Friedman’s civil rights complaint (ECF No. 13 1) and motion to extend the time for service (ECF No. 5). The Court has screened Friedman’s 14 complaint, pursuant to 28 U.S.C. § 1915A(a). Friedman alleges that defendants violated his 15 rights under the United States Constitution and, by extension,

. Based on the 16 Court’s construction of Friedman’s complaint, Friedman’s allegations, if proven true, necessarily 17 undermine the validity of his state court conviction. Therefore, the Court will order that 18 Friedman’s complaint be dismissed without prejudice, but with leave to amend by March 9, 2020. 19 I. Background. 20 Friedman was convicted of state law crimes and he is currently an inmate in the custody 21 of the Nevada Department of Corrections (“NDOC”). (ECF No 1 at 4.) He alleges that 22 defendants Elissa Luzaich, April Gagen, and Cassie Leffner violated his rights under the First, 23 Fifth, and Fourteenth Amendments to the United States Constitution. (ECF No. 1 at 4–8.) 24 Consequently, he asserts three counts under

. (Id.) 25 In Count I, Friedman alleges that defendants interfered with his ability to establish facts 26 that would have proved his “actual innocence.” (Id. at 4.) Friedman claims that Gagen had 27 initially agreed to cooperate and provide sworn statements favorable to Friedman’s defense. (Id.) 1 to stop cooperating. (Id.) This, in turn, prevented Friedman from acquiring exculpatory 2 information relevant to his defense. (Id. at 5.) 3 Friedman’s allegations in Count II and III also relate to defendants’ supposed acts of 4 witness tampering. Friedman claims that for his defense, he intended to rely heavily upon the 5 favorable testimony of two witnesses that he names “L” and “P.” (Id. at 6.) Friedman alleges 6 that Luzaich—a deputy district attorney—Leffner, and now Gagen contacted “L” and “P” and 7 dissuaded them from providing testimony favorable to Friedman’s defense. (Id.) According to 8 Friedman, “L” and “P” suffered humiliation by the defendants for “being for Friedman.” (Id. at 9 7.) Friedman claims that the jurors in the state criminal action have said that the testimony of “L” 10 and “P” would have made them alter their verdicts in Friedman’s case. (Id. at 4.) In addition to 11 “L” and “P,” Friedman alleges that several other defense witnesses “inexplicably” stopped 12 responding to Friedman’s defense efforts. (Id. at 7.) 13 In Count III, Friedman claims that defendants’ actions flow from the customs, practices, 14 and policies of Clark County. (Id. at 8.) 15 II. SCREENING 16 Courts must conduct a preliminary screening in any case in which a prisoner seeks redress 17 from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 18 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 19 that are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek 20 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 21 (2). In addition to the screening requirements under § 1915A, the Prison Litigation Reform Act 22 requires a federal court to dismiss a prisoner’s claim if it “fails to state a claim on which relief 23 may be granted.”

(e)(2); accord Fed. R. Civ. Proc. 12(b)(6). 24 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for 25 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668

, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient 27 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” See 1 may only dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in 2 support of his claim which would entitle him to relief.” Nordstrom v. Ryan,

, 908 3 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). 4 In considering whether the complaint is sufficient to state a claim, all allegations of 5 material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler 6 Summit P’ship v. Turner Broad. Sys. Inc.,

, 661 (9th Cir. 1998) (citation omitted). 7 Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 8 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly,

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

10 Unless it is clear the complaint’s deficiencies could not be cured through amendment, a pro se 11 plaintiff should be given leave to amend the complaint with notice regarding the complaint’s 12 deficiencies. Cato v. United States,

(9th Cir. 1995). 13 Here, Friedman seeks damages under

for violation of his constitutional 14 rights in the state court criminal proceedings. If a § 1983 case seeking damages alleges 15 constitutional violations that would necessarily imply the invalidity of a conviction or sentence, 16 the prisoner must establish that the underlying conviction or sentence has been invalidated on 17 appeal, by habeas petition, or through a similar proceeding. See Heck v. Humphrey,

477, 483-87 (1994). For example, the plaintiff in heck asserted claims of unlawful arrest, false 19 imprisonment, and prosecutorial misconduct. Id. at 478–79. If the plaintiff cannot demonstrate 20 that the underlying conviction or sentence has already been invalidated, then “the complaint must 21 be dismissed.” See Whitaker v. Garcetti,

(9th Cir. 2007) (citing Heck, 512 22 U.S. at 114). 23 The Court construes Friedman’s complaint to directly attack the validity of his criminal 24 conviction. In fact, he states very clearly that defendants’ actions precluded him from 25 establishing facts that would have proved his “actual innocence.” (ECF No. 1 at 4.) Friedman 26 does not allege that his conviction or sentence has been reversed or otherwise invalidated. Given 27 1 || that Friedman’s claims necessarily imply the invalidity of his conviction or sentence, the Court 2 || will order that Friedman’s complaint be dismissed, but with leave to amend.! 3 If Friedman desires to file a new complaint, he must do so by March 9, 2020. Should 4 || Friedman choose to file an amended complaint, it would be helpful for the Court if he provided a 5 || timeline for the Court to follow. The timeline should include, if possible, the date of his 6 || conviction in state court and the date of any subsequent proceedings, including habeas. 7 || If. CONCLUSION 8 IT IS THEREFORE ORDERED that Friedman’s complaint be DISMISSED without 9 || prejudice, but with leave to amend. If Friedman desires to file an amended complaint, he must do 10 || so by March 9, 2020. 11 IT IS FURTHER ORDERED that Friedman’s motion to extend the time for service (ECF 12 || No. 5) is DENIED without prejudice. Friedman is instructed to file a new motion once the Court 13 || has reviewed his forthcoming amended complaint. 14 DATED: February 19, 2020. 15 Sx Les Are □□□□ 16 BRENDA WEKSLER_——SCS UNITED STATES MAGISTRATE JUDGE

18 19 20 21 22 23 24 25 26 7 | Given the Court’s order that Friedman’s complaint be dismissed without prejudice, the Court will deny, without prejudice, Friedman’s motion to extend the time for service. Friedman is 28 || instructed to file a new motion once the Court screens his amended complaint.