Voss v. Cegavske

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

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

Plaintiff, ORDER v.

BARBARA CEGAVSKE, et al.,

Defendants.

Plaintiff Steven Floyd Voss, who is in the custody of the Nevada Department of Corrections (“NDOC”), has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis, a motion requesting a modification of the in forma pauperis requirements, and two motions for a preliminary injunction. (ECF Nos. 1-1, 4, 5, 6, 7.) The Court now screens Plaintiff’s civil rights complaint pursuant to 28 U.S.C. § 1915A and addresses Plaintiff’s motions.

I. SCREENING STANDARD

Federal courts must conduct a preliminary screening in any case in which an incarcerated person seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See id. §§ 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 17 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of material fact stated in the complaint, and the court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550

24 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id.

Additionally, a reviewing court should “begin by identifying pleadings [allegations] that, because they are no more than mere conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

Finally, all or part of a complaint filed by an incarcerated person may therefore be dismissed sua sponte if that person’s claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

II. SCREENING OF COMPLAINT

In his Complaint, Plaintiff sues multiple defendants for events that took place while Plaintiff was incarcerated at Northern Nevada Correctional Center (“NNCC”). (ECF No. 1-1 at 1.) Plaintiff sues Defendants Barbara Cegavske, the State of Nevada, Balaan, Christopher P. Hicks, Perry Russell, and Kathleen Drakulich. (Id. at 2-3.) Plaintiff alleges one count and seeks injunctive relief. (Id. at 3-8.)

The Complaint alleges the following. On November 27, 1996, Plaintiff was convicted of six separate counts. (Id. at 5.) Plaintiff appealed his conviction and the postconviction court found that the sentences imposed in each of the six counts was disproportionate. (Id. at 5-6.) The postconviction court ordered that Plaintiff be resentenced. (Id. at 6.) But Plaintiff was never resentenced, and on October 17, 2017, he filed a petition with the Supreme Court of Nevada asking that his convictions be vacated and that a judgment of acquittal be entered as a result of the failure to resentence him. (Id.)

The Nevada Court of Appeals issued an order on Plaintiff’s petition, and he attached the order to his Complaint. (Id. at 6, 18-20.) The Nevada Court of Appeals denied been determined that Plaintiff’s convictions were invalid. (Id. at 19.) Instead, the Nevada Court of Appeals ordered that Plaintiff be resentenced on the original convictions. (Id. at 20.) The Nevada Court of Appeals also noted that Plaintiff had not been subject to illegal restraint due to the failure to resentence him because he was also concurrently serving a sentence of life without the possibility of parole. (Id. at 19 n.1.)

Plaintiff has already completed his sentence on all six of the counts, and, thus, resentencing at this point will not grant Plaintiff any relief. (Id. at 7.) Nonetheless, the state district court has entered an order for resentencing, and that proceeding is currently pending. (Id.) Based on these allegations, Plaintiff asserts that Fifth, Sixth, and Fourteenth Amendment rights have been violated, and Plaintiff requests that this Court order that the district court enter a judgment of acquittal rather than resentencing Plaintiff on his six convictions. (Id. at 5, 15)

Under the Rooker–Feldman doctrine, “a federal district court does not have subject matter jurisdiction to hear a direct appeal from the final judgment of a state court. The United States Supreme Court is the only federal court with jurisdiction to hear such an appeal.” Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003). Additionally, a federal district court may not decide any issue that is a de facto appeal from a judicial decision from a state court or any issue raised in a suit that is “inextricably intertwined” with an issue resolved by a state court in its judicial decision. Id. at 1158. “A party disappointed by a decision of a state court may seek reversal of that decision by appealing to a higher state court.” Id. at 1155. “A party disappointed by a decision of the highest state court in which a decision may be had may seek reversal of that decision by appealing to the United States Supreme Court.” Id. “In neither case may the disappointed party appeal to a federal district court, even if a federal question is present or if there is diversity of citizenship between the parties.” Id.

Based on the Complaint, Plaintiff has already litigated the question of whether his convictions should be vacated at the Nevada Court of Appeals. As such, it appears that the Nevada state courts and, in effect, to conduct a de facto appeal from the Nevada Court of Appeals decision. This Court does not have jurisdiction to reverse the decision reached by the Nevada Court of Appeals. Because Plaintiff is trying to overturn a decision of the Nevada Court of Appeals, he must appeal to the Nevada Supreme Court and then directly to the United States Supreme Court.

Furthermore, even if this action were not barred by the Rooker–Feldman doctrine, the Court notes that the Supreme Court has held that a prisoner in state custody cannot use a § 1983 action to challenge “the fact or duration of his confinement,” but instead must seek federal habeas corpus relief or the appropriate state relief. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005); see also Nettles v. Grounds, 830 F.3d 922, 927(9th Cir. 2016) (reiterating that the Supreme Court has “long held that habeas is the exclusive vehicle for claims brought by state prisoners that fall within the core of habeas, and such claims may not be brought in a § 1983 action”). In Wilkinson, the Supreme Court held that “a state prisoner’s § 1983 action is barred (absent prior invalidation)–no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)–if success in that action would necessarily demonstrate the invalidity of confinement or its duration. Id. at 81-82.

Plaintiff argues that the order from the Nevada Court of Appeals finding that he had not been properly sentenced satisfies the “prior invalidation” requirement. But Plaintiff does not seek any relief related to his previous improper sentence. Rather, Plaintiff requests that the Court order the state district court to issue a judgment of acquittal. The Nevada Court of Appeals specifically found that a judgment of acquittal was inappropriate. (ECF No. 1-1 at 19.) As such, there is no habeas order finding that Plaintiff is entitled to a judgment of acquittal, and this Court cannot issue such an order.

Accordingly, the Complaint is dismissed without prejudice but without leave to amend. As such, the Court dismisses Plaintiff’s application to proceed in forma pauperis (ECF No. 5), as well as Plaintiff’s outstanding motions (ECF Nos 4, 6, 7) as moot.

1/| Ill. ©CONCLUSION

For the foregoing reasons, it is ordered that Plaintiffs application to proceed in forma pauperis (ECF No. 5) is denied as moot.

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.

It is further ordered that the Complaint is dismissed in its entirety without prejudice and without leave to amend.

It is further ordered that Plaintiff's outstanding motions (ECF Nos. 4, 6, 7) are denied as moot.

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 28 U.S.C. § 1915(a)(3).

It is further ordered that the Clerk of the Court close this case and enter judgment accordingly.

DATED THIS 24" Day of February 2021. To

J (Lho

CHIEF UNITED STATES DISTRICT JUDGE