2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 STEVEN FLOYD VOSS, Case No. 3:20-cv-00266-MMD-CLB

7 Plaintiff, ORDER v. 8 BARBARA CEGAVSKE, et al., 9 Defendants. 10 11 Plaintiff Steven Floyd Voss, who is in the custody of the Nevada Department of 12 Corrections (“NDOC”), has submitted a civil rights complaint pursuant to

13 and has filed an application to proceed in forma pauperis, a motion requesting a 14 modification of the in forma pauperis requirements, and two motions for a preliminary 15 injunction. (ECF Nos. 1-1, 4, 5, 6, 7.) The Court now screens Plaintiff’s civil rights 16 complaint pursuant to 28 U.S.C. § 1915A and addresses Plaintiff’s motions. 17 I. SCREENING STANDARD 18 Federal courts must conduct a preliminary screening in any case in which an 19 incarcerated person seeks redress from a governmental entity or officer or employee of 20 a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify 21 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 22 claim upon which relief may be granted, or seek monetary relief from a defendant who is 23 immune from such relief. See id. §§ 1915A(b)(1), (2). Pro se pleadings, however, must 24 be liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1990). 25 To state a claim under

, a plaintiff must allege two essential elements: 26 (1) the violation of a right secured by the Constitution or laws of the United States, and 27 (2) that the alleged violation was committed by a person acting under color of state law. 28 See West v. Atkins,

(1988). 2 Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s 3 claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails 4 to state a claim on which relief may be granted, or seeks monetary relief against a 5 defendant who is immune from such relief.”

(e)(2). Dismissal of a 6 complaint for failure to state a claim upon which relief can be granted is provided for in 7 Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under 8 § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a 9 court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 10 the complaint with directions as to curing its deficiencies, unless it is clear from the face 11 of the complaint that the deficiencies could not be cured by amendment. See Cato v. 12 United States,

(9th Cir. 1995). 13 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 14 Chappel v. Lab. Corp. of Am.,

(9th Cir. 2000). Dismissal for failure to 15 state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 16 support of the claim that would entitle him or her to relief. See Morley v. Walker,

(9th Cir. 1999). In making this determination, the court takes as true all 18 allegations of material fact stated in the complaint, and the court construes them in the 19 light most favorable to the plaintiff. See Warshaw v. Xoma Corp.,

(9th 20 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 21 formal pleadings drafted by lawyers. See Hughes v. Rowe,

(1980). While 22 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 23 must provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550

, 555 (2007). A formulaic recitation of the elements of a cause of action is 25 insufficient.

26 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 27 that, because they are no more than mere conclusions, are not entitled to the assumption 28 of truth.” Ashcroft v. Iqbal,

(2009). “While legal conclusions can provide 2 there are well-pleaded factual allegations, a court should assume their veracity and then 3 determine whether they plausibly give rise to an entitlement to relief.”

“Determining 4 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 5 requires the reviewing court to draw on its judicial experience and common sense.”

6 Finally, all or part of a complaint filed by an incarcerated person may therefore be 7 dismissed sua sponte if that person’s claims lack an arguable basis either in law or in fact. 8 This includes claims based on legal conclusions that are untenable (e.g., claims against 9 defendants who are immune from suit or claims of infringement of a legal interest which 10 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 11 fantastic or delusional scenarios). See Neitzke v. Williams,

(1989); 12 see also McKeever v. Block,

(9th Cir. 1991). 13 II. SCREENING OF COMPLAINT 14 In his Complaint, Plaintiff sues multiple defendants for events that took place while 15 Plaintiff was incarcerated at Northern Nevada Correctional Center (“NNCC”). (ECF No. 16 1-1 at 1.) Plaintiff sues Defendants Barbara Cegavske, the State of Nevada, Balaan, 17 Christopher P. Hicks, Perry Russell, and Kathleen Drakulich. (Id. at 2-3.) Plaintiff alleges 18 one count and seeks injunctive relief. (Id. at 3-8.) 19 The Complaint alleges the following. On November 27, 1996, Plaintiff was 20 convicted of six separate counts. (Id. at 5.) Plaintiff appealed his conviction and the 21 postconviction court found that the sentences imposed in each of the six counts was 22 disproportionate. (Id. at 5-6.) The postconviction court ordered that Plaintiff be 23 resentenced. (Id. at 6.) But Plaintiff was never resentenced, and on October 17, 2017, he 24 filed a petition with the Supreme Court of Nevada asking that his convictions be vacated 25 and that a judgment of acquittal be entered as a result of the failure to resentence him. 26 (Id.) 27 The Nevada Court of Appeals issued an order on Plaintiff’s petition, and he 28 attached the order to his Complaint. (Id. at 6, 18-20.) The Nevada Court of Appeals denied 2 been determined that Plaintiff’s convictions were invalid. (Id. at 19.) Instead, the Nevada 3 Court of Appeals ordered that Plaintiff be resentenced on the original convictions. (Id. at 4 20.) The Nevada Court of Appeals also noted that Plaintiff had not been subject to illegal 5 restraint due to the failure to resentence him because he was also concurrently serving a 6 sentence of life without the possibility of parole. (Id. at 19 n.1.) 7 Plaintiff has already completed his sentence on all six of the counts, and, thus, 8 resentencing at this point will not grant Plaintiff any relief. (Id. at 7.) Nonetheless, the state 9 district court has entered an order for resentencing, and that proceeding is currently 10 pending. (Id.) Based on these allegations, Plaintiff asserts that Fifth, Sixth, and Fourteenth 11 Amendment rights have been violated, and Plaintiff requests that this Court order that the 12 district court enter a judgment of acquittal rather than resentencing Plaintiff on his six 13 convictions. (Id. at 5, 15) 14 Under the Rooker–Feldman doctrine, “a federal district court does not have 15 subject matter jurisdiction to hear a direct appeal from the final judgment of a state court. 16 The United States Supreme Court is the only federal court with jurisdiction to hear such 17 an appeal.” Noel v. Hall,

(9th Cir. 2003). Additionally, a federal 18 district court may not decide any issue that is a de facto appeal from a judicial decision 19 from a state court or any issue raised in a suit that is “inextricably intertwined” with an 20 issue resolved by a state court in its judicial decision.

. “A party disappointed 21 by a decision of a state court may seek reversal of that decision by appealing to a higher 22 state court.”

. “A party disappointed by a decision of the highest state court in 23 which a decision may be had may seek reversal of that decision by appealing to the 24 United States Supreme Court.”

“In neither case may the disappointed party appeal to 25 a federal district court, even if a federal question is present or if there is diversity of 26 citizenship between the parties.”

27 Based on the Complaint, Plaintiff has already litigated the question of whether his 28 convictions should be vacated at the Nevada Court of Appeals. As such, it appears that 2 the Nevada state courts and, in effect, to conduct a de facto appeal from the Nevada 3 Court of Appeals decision. This Court does not have jurisdiction to reverse the decision 4 reached by the Nevada Court of Appeals. Because Plaintiff is trying to overturn a decision 5 of the Nevada Court of Appeals, he must appeal to the Nevada Supreme Court and then 6 directly to the United States Supreme Court. 7 Furthermore, even if this action were not barred by the Rooker–Feldman doctrine, 8 the Court notes that the Supreme Court has held that a prisoner in state custody cannot 9 use a § 1983 action to challenge “the fact or duration of his confinement,” but instead 10 must seek federal habeas corpus relief or the appropriate state relief. Wilkinson v. Dotson, 11

(2005); see also Nettles v. Grounds,

(9th Cir. 2016) 12 (reiterating that the Supreme Court has “long held that habeas is the exclusive vehicle for 13 claims brought by state prisoners that fall within the core of habeas, and such claims may 14 not be brought in a § 1983 action”). In Wilkinson, the Supreme Court held that “a state 15 prisoner’s § 1983 action is barred (absent prior invalidation)–no matter the relief sought 16 (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct 17 leading to conviction or internal prison proceedings)–if success in that action would 18 necessarily demonstrate the invalidity of confinement or its duration. Id. at 81-82. 19 Plaintiff argues that the order from the Nevada Court of Appeals finding that he 20 had not been properly sentenced satisfies the “prior invalidation” requirement. But Plaintiff 21 does not seek any relief related to his previous improper sentence. Rather, Plaintiff 22 requests that the Court order the state district court to issue a judgment of acquittal. The 23 Nevada Court of Appeals specifically found that a judgment of acquittal was inappropriate. 24 (ECF No. 1-1 at 19.) As such, there is no habeas order finding that Plaintiff is entitled to 25 a judgment of acquittal, and this Court cannot issue such an order. 26 Accordingly, the Complaint is dismissed without prejudice but without leave to 27 amend. As such, the Court dismisses Plaintiff’s application to proceed in forma pauperis 28 (ECF No. 5), as well as Plaintiff’s outstanding motions (ECF Nos 4, 6, 7) as moot. 1/| Ill. ©CONCLUSION 2 For the foregoing reasons, it is ordered that Plaintiffs application to proceed in 3|| forma pauperis (ECF No. 5) is denied as moot. 4 It is further ordered that the Clerk of the Court file the Complaint (ECF No. 1-1) and send Plaintiff a courtesy copy of the Complaint. 6 It is further ordered that the Complaint is dismissed in its entirety without prejudice 7|| and without leave to amend. 8 It is further ordered that Plaintiff's outstanding motions (ECF Nos. 4, 6, 7) are 9|| denied as moot. 10 It is further ordered that this Court certifies that any in forma pauperis appeal from || this Order would not be taken “in good faith” under

(a)(3). 12 It is further ordered that the Clerk of the Court close this case and enter judgment accordingly. 14 DATED THIS 24" Day of February 2021. To 15 J (Lho 16 CHIEF UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28