1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA

3 KEM PETERS, Case No. 2:20-cv-01488-GMN-EJY

4 Plaintiff, ORDER and 5 v. REPORT AND RECOMMENDATION

6 DARIN F. IMLAY, et al. RE: ECF Nos. 3, 4 and 4-1

7 Defendants.

8 9 Before the Court is Kem Peters’ Applications to Proceed in forma pauperis (ECF Nos. 3 and 10 4), and his Civil Rights Complaint Pursuant to

(ECF No. 4-1). For the reasons 11 stated below, although Plaintiff’s in forma pauperis application is complete, the Court recommends 12 Plaintiff’s Complaint be dismissed with prejudice. 13 I. Screening Plaintiff’s Complaint 14 When screening a § 1983 complaint, a court must identify cognizable claims and dismiss 15 claims that are frivolous, malicious, fail to state a claim on which relief may be granted or seek 16 monetary relief from a defendant who is immune from such relief.

(e)(2). 17 Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state 18 a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter,

, 1112 19 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual matter, 20 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009). The court liberally construes pro se complaints and may only dismiss them “if it 22 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would 23 entitle him to relief.” Nordstrom v. Ryan,

(9th Cir. 2014) (quoting Iqbal, 556 24 U.S. at 678). “An amendment is futile if the amended [pleading] could not withstand a motion to 25 dismiss pursuant to Rule 12, Fed.R.Civ.P.” Pullano v. NaphCare, Case No. 2:10-cv-00335-JAD- 26 VCF,

, at *5 (D. Nev. Sept. 23, 2014) (internal citations and quotation marks 27 omitted). 1 In considering whether the complaint is sufficient to state a claim, all allegations of material 2 fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P’ship 3 v. Turner Broad. Sys. Inc.,

, 661 (9th Cir. 1998) (citation omitted). Although the 4 standard under Fed. R. Civ. P. 12(b)(6) does not require detailed factual allegations, a plaintiff must 5 provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly,

, 555 6 (2007). A formulaic recitation of the elements of a cause of action is insufficient.

Unless it is 7 clear the complaint’s deficiencies could not be cured through amendment, a pro se plaintiff should 8 be given leave to amend the complaint with notice regarding the complaint’s deficiencies. Cato v. 9 United States,

(9th Cir. 1995). 10 II. Plaintiff’s Complaint Fails As A Matter Of Law 11 The Court finds Plaintiff’s allegations against his Deputy Public Defenders Scott Ramsey 12 and Darin Imlay are ones stating ineffective assistance of counsel claims. Plaintiff generally avers 13 that these attorneys violated his rights through ineffective assistance of counsel by engaging in non- 14 confidential communications, failing to move the state court to allow confidential contacts resulting 15 in the loss of evidence, and refusing to file numerous motions. ECF No. 4-1 at 4-5. However, 16 Plaintiff’s ineffective assistance of counsel claim must be brought in a habeas corpus petition under 17

as Plaintiff remains in state custody.

at 1 and 3 (stating Plaintiff is a pretrial 18 detainee in state custody); Stow v. Murashige,

(9th Cir. 2004) (identifying that § 19 2241 is the proper habeas statute for alleged constitutional violation pre-final-judgment in a state 20 court criminal proceeding); Trimble v. City of Santa Rosa,

(9th Cir. 1995) (per 21 curiam) (concluding that Sixth Amendment claim of ineffective assistance of counsel brought under 22 § 1983 is precluded under Heck v. Humphrey,

(1994)). Plaintiff brings his claims 23 under § 1983, which provides Plaintiff no avenue for relief. 24 Further, Plaintiff’s ineffective assistance claim is premature even if it is brought in a habeas 25 petition. Federal courts are unanimous that § 2241 may not be used to litigate ineffective assistance 26 of counsel [claims] prior to sentencing.” United States v. Snegirev, Case No. A05-0024 CR JKS, 27

, at *3 (D. Alaska Aug. 29, 2005); United States v. Pirro,

(9th 1 Cir. 1997) (affirming the dismissal of a § 2241 petition filed before sentencing and based on 2 ineffective assistance of counsel because “the petition was premature”); Dunn v. Christensen, Case 3 No. 2:15-cv-01812-JCM-PAL;

at *8 (D. Nev. Jan. 29, 2018) (holding that an 4 action for ineffective assistance of counsel does not accrue until the underlying proceeding or 5 criminal case is resolved). 6 Plaintiff filed a Section 1983 action, not a habeas petition, before resolution of his state 7 criminal case. For this reason, Plaintiff’s claims against his Deputy Public Defenders fail as a matter 8 of law and should be dismissed with prejudice. 9 III. Order 10 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Application to Proceed in forma 11 pauperis, ECF No. 4 is GRANTED. 12 IT IS FURTHER ORDERED that Plaintiff’s Application to Proceed in forma pauperis, ECF 13 No. 3, is DENIED as moot. 14 IV. Recommendation 15 IT IS HEREBY RECOMMENDED that Plaintiff’s Complaint Pursuant to

, 16 ECF No. 4-1, be dismissed with prejudice because there is no set of fact Plaintiff can allege regarding 17 ineffective assistance of counsel that would survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss. 18 Dated this 9th day of September, 2020

19

20 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 21 22 NOTICE 23 Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be 24 in writing and filed with the Clerk of the Court within fourteen (14) days. In 1985, the Supreme 25 Court held that the courts of appeal may determine that an appeal has been waived due to the failure 26 to file objections within the specified time. Thomas v. Arn,

(1985). The Ninth 27 Circuit has also held that (1) failure to file objections within the specified time and (2) failure to 1 properly address and brief the objectionable issues waives the right to appeal the District Court’s 2 order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst,

(9th Cir. 1991); Britt v. Simi Valley United Sch. Dist.,

, 454 (9th Cir. 1983). 4 5 6

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