Burriola v. State of Nevada et al, No. 2:2019cv01936 - Document 19 (D. Nev. 2021)
Court Description: SCREENING ORDER Granting 6 Motion/Application for Leave to Proceed in forma pauperis. IT IS FURTHER ORDERED that 14 the FAC is dismissed in its entirety with prejudice, as amendment would be futile, for failure to state a claim. This Court c ertifies that any in forma pauperis appeal from this order would not be taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). Signed by Judge Richard F. Boulware, II on 10/21/2021. (Copies have been distributed pursuant to the NEF -cc: Chief of Inmate Services - JQC) Modified text on 10/22/2021 (SLD).
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Burriola v. State of Nevada et al Doc. 19 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 ANTHONY BURRIOLA, Case No. 2:19-cv-01936-RFB-NJK 10 Plaintiff, v. 11 12 SCREENING ORDER ON FIRST AMENDED COMPLAINT (ECF No. 14) STATE OF NEVADA, et al., Defendants. 13 14 Plaintiff, who is incarcerated in the custody of the Nevada Department of 15 Corrections (“NDOC”), has submitted a first amended civil rights complaint (“FAC”) 16 pursuant to 42 U.S.C. § 1983, and has filed an application to proceed in forma pauperis. 17 (ECF Nos. 6, 14). The Court grants the application to proceed in forma pauperis and 18 screens Plaintiff’s FAC pursuant to 28 U.S.C. § 1915A. 19 I. IN FORMA PAUPERIS APPLICATION 20 Plaintiff’s application to proceed in forma pauperis is granted. (ECF No. 6). Based 21 on the information regarding Plaintiff’s financial status, the Court finds that Plaintiff is not 22 able to pay an initial installment payment toward the full filing fee pursuant to 28 U.S.C. § 23 1915. Plaintiff will, however, be required to make monthly payments toward the full 24 $350.00 filing fee when he has funds available. 25 II. SCREENING STANDARD 26 Federal courts must conduct a preliminary screening in any case in which an 27 incarcerated person seeks redress from a governmental entity or officer or employee of 28 a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify Dockets.Justia.com 1 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 2 claim upon which relief may be granted, or seek monetary relief from a defendant who is 3 immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings, however, must be 4 liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 6 (1) the violation of a right secured by the Constitution or laws of the United States, and 7 (2) that the alleged violation was committed by a person acting under color of state law. 8 See West v. Atkins, 487 U.S. 42, 48 (1988). 9 In addition to the screening requirements under § 1915A, pursuant to the Prison 10 Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s 11 claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails 12 to state a claim on which relief may be granted, or seeks monetary relief against a 13 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a 14 complaint for failure to state a claim upon which relief can be granted is provided for in 15 Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under 16 § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a 17 court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 18 the complaint with directions as to curing its deficiencies, unless it is clear from the face 19 of the complaint that the deficiencies could not be cured by amendment. See Cato v. 20 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 21 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 22 Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to 23 state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 24 support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 25 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all 26 allegations of material fact stated in the complaint, and the court construes them in the 27 light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th 28 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 2 1 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While 2 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 3 must provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 4 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 5 insufficient. Id. 6 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 7 that, because they are no more than mere conclusions, are not entitled to the assumption 8 of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide 9 the framework of a complaint, they must be supported with factual allegations.” Id. “When 10 there are well-pleaded factual allegations, a court should assume their veracity and then 11 determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining 12 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 13 requires the reviewing court to draw on its judicial experience and common sense.” Id. 14 Finally, all or part of a complaint filed by an incarcerated person may therefore be 15 dismissed sua sponte if that person’s claims lack an arguable basis either in law or in fact. 16 This includes claims based on legal conclusions that are untenable (e.g., claims against 17 defendants who are immune from suit or claims of infringement of a legal interest which 18 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 19 fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327–28 (1989); 20 see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 21 III. PROCEDURAL HISTORY 22 On October 12, 2020, this Court screened Plaintiff’s original complaint and 23 dismissed that complaint in its entirety with leave to amend. (ECF No. 12). In the original 24 complaint, Plaintiff alleged violations of due process; cruel and unusual punishment; 25 equal protection; violations of supreme, international, and treaty laws; and violations of 26 the Uniform Commercial Code (“UCC”). (ECF No. 13 at 4). The Court dismissed the 27 claims as follows: the UCC claim with prejudice; the supreme, international, and treaty 28 law claims without prejudice because the Court did not understand what type of claim 3 1 Plaintiff was trying to raise; the Eighth Amendment claim without prejudice; the Fourteenth 2 Amendment due process claim with prejudice as amendment would be futile because 3 Plaintiff could not establish a liberty interest in parole or parole eligibility in Nevada; and 4 the Fourteenth Amendment equal protection claim without prejudice. (Id. at 4-5). The 5 Court granted Plaintiff leave to amend. (Id. at 5). The Court now screens Plaintiff’s FAC 6 (ECF No. 14). 7 IV. SCREENING OF FAC 8 In the FAC, Plaintiff sues multiple defendants for events that took place while 9 Plaintiff was incarcerated at Nevada State Prison, Northern Nevada Correctional Center 10 (“NNCC”), and Ely State Prison (“ESP”). (ECF No. 14 at 2). Plaintiff sues Defendants 11 NDOC Director Charles Daniels, NNCC Warden Perry Russell, Nevada Attorney General 12 Aaron Ford, and Governor Steve Sisolak. (Id. at 3-4). Plaintiff brings one claim and seeks 13 injunctive and monetary relief. 1 (Id. at 5, 12). 14 Although the FAC is not the model of clarity, Plaintiff appears to be alleging the 15 following: Plaintiff’s presentence investigation report (“PSI”) contains fraudulent and 16 fabricated convictions. (Id. at 5). Plaintiff’s judgment of conviction is a contract which 17 provides that Plaintiff shall be considered for parole once he serves 10 years for each 18 conviction. (Id.) This is binding. (Id.) Although there is no right to parole under Nevada 19 “public law,” Plaintiff has a contractual right for consideration and a right to the use of 20 accurate and truthful records. 21 because the parole board listed a fraudulent conviction on Plaintiff’s PSI and added that 22 conviction to the risk assessment document. (Id.) (Id.) Defendants have violated their fiduciary duties 23 Plaintiff alleges violations of the Eighth Amendment, human rights treaties, 24 declaration of rights and duties to man, a United Nations declaration, and the convention 25 against torture. (Id. at 5). 26 27 28 1 Apollyon A. Abaddan helped Plaintiff prepare the FAC. (ECF No. 14 at 12). 4 1 A. 2 To state an Eighth Amendment cruel and unusual punishment claim for detaining 3 a person beyond the termination of his or her sentence, the plaintiff must demonstrate 4 that the detention was the result of deliberate indifference to the prisoner’s liberty interest 5 or that the detention violated due process. Haygood v. Younger, 769 F.2d 1350, 1354 6 (9th Cir. 1985). Eighth Amendment 7 The Court finds that Plaintiff fails to allege a colorable cruel and unusual 8 punishment claim. As discussed in the original screening order, Plaintiff does not have 9 liberty interest in parole or parole eligibility and, thus, he cannot demonstrate deliberate 10 indifference to his “liberty interest.” (See ECF No. 12 at 4). Additionally, Plaintiff cannot 11 establish a liberty interest in parole consideration. 2 Moreover, Plaintiff was not held 12 beyond the termination of his sentence but instead argues that he was not considered for 13 parole or not considered for parole fairly. Accordingly, this claim is dismissed with 14 prejudice as amendment would be futile. 15 B. 16 It is difficult to decipher Plaintiff’s treaty arguments, but it appears that Plaintiff is 17 arguing that Defendants are keeping Plaintiff falsely imprisoned. In his treaty arguments, 18 Plaintiff argues that fraudulent criminal convictions are prohibited, prison officials are 19 using fraudulent documents, there is a prohibition against punishing someone for the acts 20 of someone else, and prison officials are trespassing upon Plaintiff. (ECF No. 14 at 6-7). 21 Plaintiff cites to the Universal Declaration of Human Rights; American Declaration of the 22 Rights and Duties of Man; U.N. Declaration on Decolonization; the Convention Against Treaties 23 24 25 26 27 28 2 In Anselmo v. Bisbee, 396 P.3d 848 (Nev. 2017), the Nevada Supreme Court recognized that eligible Nevada inmates do have a state statutory right to have the parole board’s internal guidelines concerning aggravating factors interpreted correctly when the parole board is determining whether to grant or deny them parole. Id. at 84951. However, allegations that a defendant violated state law are not sufficient to state a claim for violation of the Fourteenth Amendment’s due process clause. Swarthout v. Cooke, 562 U.S. 216, 222 (2011) (holding that “a ‘mere error of state law’ is not a denial of due process”). 5 1 Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”); and 2 a private attorney general doctrine. (Id. at 6-7). 3 The Court dismisses Plaintiff’s treaty claims with prejudice as amendment would 4 be futile. 3 First, the Universal Declaration of Human Rights is a statement of principles 5 and does not impose legal obligations or provide a private right of action in civil suits. 6 Sosa v. Alvarez–Machain, 542 U.S. 692, 734 (2004); Konar v. Illinois, 327 F. App'x 638, 7 640 (7th Cir. 2009) (holding that the Universal Declaration of Human Rights provides no 8 private right of action). 9 Second, the American Declaration of the Rights and Duties of Man (“American 10 Declaration”) is not a treaty and is not enforceable domestically. Flores-Nova v. Att’y Gen. 11 of U.S., 652 F.3d 488, 494–95 (3d Cir. 2011). 12 Declaration, adopted by United States and twenty other original [Organization of 13 American States (“OAS”)] member states at the Ninth International Conference of 14 American States in Bogotá, Colombia in 1948, represents a noble statement of the human 15 rights aspirations of the American States, but creates no binding set of obligations.” Id. “In the best sense, the American 16 Third, with respect to the U.N. Declaration on Decolonization, Plaintiff argues that 17 he is his own “sovereign citizen” and a “secured party creditor,” and that this treaty 18 ensures his right to seek and obtain freedom. (ECF No. 14 at 6-7). The Court rejects this 19 argument because “sovereign citizens” are subject to the laws of this jurisdiction. See 20 United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011) (holding that “[r]egardless of 21 an individual’s claimed status of descent, be it as a ‘sovereign citizen,’ a ‘secured-party 22 creditor,’ or a ‘flesh-and-blood human being,’ that person is not beyond the jurisdiction of 23 the courts”); Clarke v. Allen, No. 3:17-CV-00582-MMD-WGC, 2020 WL 3510921, at *1 24 (D. Nev. June 29, 2020) (rejecting the plaintiff’s sovereign citizen theories). 25 Fourth, with respect to the CAT, Plaintiff is arguing that he is being punished for 26 the acts of someone else. (ECF No. 14 at 7). The Court rejects this argument because 27 Plaintiff is attempting to challenge the validity of his sentence. If Plaintiff seeks to 28 3 To the extent that some of Plaintiff’s claims lie in habeas, those claims are dismissed without prejudice but without leave to amend in this case. 6 1 challenge his conviction, he must pursue that claim in habeas. See Nettles v. Grounds, 2 830 F.3d 922, 927 (9th Cir. 2016) (reiterating that the Supreme Court has “long held that 3 habeas is the exclusive vehicle for claims brought by state prisoners that fall within the 4 core of habeas, and such claims may not be brought in a § 1983 action”). 5 Finally, Plaintiff alleges that Attorney General Ford is illegally trespassing on 6 prisoners. (ECF No. 14 at 7). The Court interprets this allegation as asserting that Plaintiff 7 is being incarcerated illegally. The Court rejects this argument because Plaintiff appears 8 to be challenging the validity of his sentence or confinement. If Plaintiff seeks to challenge 9 the validity of his sentence or confinement, he must pursue that claim in habeas. 10 V. CONCLUSION 11 It is ordered that Plaintiff's application to proceed in forma pauperis (ECF No. 6) 12 without having to prepay the full filing fee is granted. Plaintiff will not be required to pay 13 an initial installment fee. Nevertheless, the full filing fee will still be due, pursuant to 28 14 U.S.C. § 1915, as amended by the Prison Litigation Reform Act. The movant herein is 15 permitted to maintain this action to conclusion without the necessity of prepayment of fees 16 or costs or the giving of security therefor. This order granting in forma pauperis status 17 will not extend to the issuance and/or service of subpoenas at government expense. 18 It is further ordered that, pursuant to 28 U.S.C. § 1915, as amended by the Prison 19 Litigation Reform Act, the Nevada Department of Corrections will forward payments from 20 the account of Anthony Burriola, #61171 to the Clerk of the United States District Court, 21 District of Nevada, 20% of the preceding month's deposits (in months that the account 22 exceeds $10.00) until the full $350 filing fee has been paid for this action. The Clerk of 23 the Court will send a copy of this order to the Finance Division of the Clerk’s Office. The 24 Clerk will send a copy of this order to the attention of Chief of Inmate Services for the 25 Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702. 26 It is further ordered that, even if this action is dismissed, or is otherwise 27 unsuccessful, the full filing fee will still be due, pursuant to 28 U.S.C. §1915, as amended 28 by the Prison Litigation Reform Act. 7 1 It is further ordered that the FAC (ECF No. 14) is the operative complaint. 2 It is further ordered that the FAC (ECF No. 14) is dismissed in its entirety with 3 4 5 6 7 prejudice, as amendment would be futile, for failure to state a claim. 4 It is further ordered that this Court certifies that any in forma pauperis appeal from this order would not be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). It is further ordered that the Clerk of the Court is directed to close the case and enter judgment accordingly. 8 9 DATED THIS 21st day of October, 2021. 10 ___ 11 RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 However, to the extent that Plaintiff is raising habeas issues, those claims are dismissed without prejudice but without leave to amend in this case. 8
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