2

3 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 4

5 KEVIN D. SUTTON, Case No. 2:22-cv-02155-CDS-NJK

6 Petitioner ORDER

v. 7

8 THE STATE OF NEVADA, et al.,

9 Respondents

10 11 Petitioner Kevin D. Sutton, a pro se Nevada prisoner, has filed a petition for declaratory 12 judgment pursuant to

. ECF No. 1-1 (“Petition”). Following initial review, the 13 court dismisses the Petition due to multiple substantial defects. 14 I. BACKGROUND 15 Sutton appears to challenge a 1999 judgment of conviction entered in the Eighth Judicial 16 District Court in State of Nevada v. Kevin D. Sutton, case no. 96C139518.1 Sutton was convicted of 17 first-degree murder with the use of a deadly weapon and is serving a sentence of life with the 18 possibility of parole after an aggregate of 40 years. 19 In his instant Petition, Sutton seeks for this court to, inter alia, have him “immediately 20 released from the respondents’ custody.” ECF No. 1-1 at 11. Sutton argues that his sentence 21 enhancement for using a deadly weapon is unconstitutional because he was never convicted of 22 the offense of using a deadly weapon. See generally

23 24 25 1 The court takes judicial notice of the online docket records of the Eighth Judicial District Court, 26 which may be accessed online at https://www.clarkcountycourts.us/Anonymous/default.aspx. The court takes judicial notice of the habeas petitions Sutton has filed in the District of Nevada, including one that 27 was decided on the merits. See Kevin D. Sutton v. Farwell, Case No. 3:04-cv-00498-HDM; Sutton v. LeGrand, Case No. 3:13-cv-00232-RCJ-VPC; Sutton v. LeGrand, Case No. 3:15-cv-00353-MMD-VPC; Sutton v. LeGrand, 28 Case No. 3:15-cv-00394-MMD-WGC; Sutton v. Baker, Case No. 3:18-cv-00233-MMD-CLB; Sutton v. Baker, Case No. 3:18-cv-00598-MMD-CLB; Sutton v. Olsen, Case No. 3:21-cv-00374-RCJ-WGC; Sutton v. Olsen, 2 A. Commencement 3 Sutton did not pay the filing fee, and he did not file an application to proceed in forma 4 pauperis (“IFP”). Under

(a), the filing fee for “any civil action, suit or proceeding . . 5 . whether by original process, removal or otherwise,” except for an application for a writ of 6 habeas corpus, is $350.00, to which is added a $52.00 administration fee. Sutton did not file an 7 application for a writ of habeas corpus in this action; instead, he petitions for declaratory 8 judgment. The filing fee therefore is $402.00. The Prisoner Litigation Reform Act allows the 9 court, on application, to permit Sutton to pay the $402.00 fee in installments even if he currently 10 is not able to pay the entire fee. But Sutton did not pay the fee or file an application to proceed 11 IFP to pay the fee in installments, so this action has been improperly commenced.

1915. 13 B. The Petition 14 Sutton’s Petition is subject to multiple substantial defects warranting dismissal of the 15 Petition without prejudice. First, this court does not have jurisdiction over an action brought 16 against the State of Nevada. Sutton may not proceed directly against the State of Nevada or an 17 arm of the State in federal court due to the state sovereign immunity recognized by the Eleventh 18 Amendment. E.g., O’Connor v. Nevada,

(9th Cir. 1982) (“It is clear that under the 19 eleventh amendment a state or its agencies cannot be sued in federal court without its consent.”) 20 State sovereign immunity bars an action against the State or an arm of the State in federal court 21 regardless of the relief sought. E.g., Pennhurst State School & Hosp. v. Halderman,

, 101–02 22 (1984). 23 Second, Sutton invokes

, which provides that in an actual controversy a 24 court may declare the rights and other legal remedies of the parties. The court is unaware of any 25 authority that indicates that the constitutionality of a state court judgment of conviction may be 26 challenged under this federal statute. Rather, when a prisoner challenges the legality or duration 27 of his custody, or raises a constitutional challenge which could entitle him to an earlier release, 28 his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez,

(1973); Young v. 2 conviction by arguing the unconstitutionality of his sentence based on Nevada’s sentence 3 enhancement statute. His sole federal remedy for such claims is a writ of habeas corpus. 4 Third, to the extent that Sutton challenges his judgment of conviction other than 5 through a habeas petition, his civil action is barred under Heck v. Humphrey,

(1994). 6 An inmate in custody pursuant to a judgment of conviction may not pursue claims that 7 necessarily challenge the validity of that conviction in a federal civil action other than in a 8 federal habeas action.

9 III. CONCLUSION 10 It is therefore ordered that the clerk file the petition for declaratory judgment (ECF No. 11 1-1). 12 It is further ordered that the petition for declaratory judgment (ECF No. 1-1) is dismissed 13 without prejudice. A certificate of appealability is denied, as reasonable jurists would not find 14 the dismissal of this action without prejudice to be debatable or wrong. 15 It is further ordered that the clerk enter final judgment accordingly and close this case. 16 DATED: January 5, 2023 17

18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28