Fernandez v. Castaldo et al, No. 2:2013cv01706 - Document 8 (D. Nev. 2014)

Court Description: ORDER that the Clerk shall file the complaint and that the complaint shall be DISMISSED without prejudice for failure to state a claim upon which relief may be granted. This dismissal shall count as a "strike" under 28 U.S.C. § 1915(g ). FURTHER ORDERED that 2 Motion for Leave to File a Longer than Usual Complaint is GRANTED in part only to the extent consistent with the remaining provisions of this order. The Clerk shall enter final judgment dismissing this action without prejudice. Signed by Judge Lloyd D. George on 4/30/14. (Copies have been distributed pursuant to the NEF - MMM)
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Fernandez v. Castaldo et al Doc. 8 1 2 3 4 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 5 6 7 RENE F. FERNANDEZ, 2:13-cv-01706-LDG-VCF 8 Plaintiff, 9 ORDER vs. 10 11 12 ERNESTO CASTALDO, et al. Defendants. 13 14 This pro se prisoner civil rights action by a Nevada state inmate comes before the Court 15 for initial review of the complaint under 28 U.S.C. § 1915A as well as on plaintiff’s motion (#2) 16 for leave to file a longer than usual complaint. The initial partial filing fee in effect has been 17 paid through installments drawn from plaintiff’s inmate account. 18 Turning to initial review, when a “prisoner seeks redress from a governmental entity or 19 officer or employee of a governmental entity,” the court must “identify cognizable claims or 20 dismiss the complaint, or any portion of the complaint, if the complaint: (1) is frivolous, 21 malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary 22 relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 23 In considering whether the plaintiff has stated a claim upon which relief can be granted, 24 all material factual allegations in the complaint are accepted as true for purposes of initial 25 review and are to be construed in the light most favorable to the plaintiff. See, e.g., Russell 26 v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). However, mere legal conclusions 27 unsupported by any actual allegations of fact are not assumed to be true in reviewing the 28 complaint. Ashcroft v. Iqbal, 556 U.S. 662, 677-81 & 686-87 (2009). That is, bare and Dockets.Justia.com 1 conclusory assertions that constitute merely formulaic recitations of the elements of a cause 2 of action and that are devoid of further factual enhancement are not accepted as true and do 3 not state a claim for relief. Id. 4 Further, the factual allegations must state a plausible claim for relief, meaning that the 5 well-pleaded facts must permit the court to infer more than the mere possibility of misconduct: 6 [A] complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” [Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007).] A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id., at 557, 127 S.Ct. 1955 (brackets omitted). 7 8 9 10 11 12 13 . . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not “show[n]” - “that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2). 14 15 16 17 18 Iqbal, 556 U.S. at 678. Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). 19 In the complaint, plaintiff Rene F. Fernandez brings a Bivens action against two officers 20 and two alleged paid informants of the Drug Enforcement Administration (DEA), in their 21 individual and official capacities. Plaintiff alleges that the defendants entrapped him in drug 22 transactions involving 13 kilos of cocaine over the course of an alleged governmental criminal 23 conspiracy from January through June 4, 2007. Plaintiff acknowledges that he was convicted 24 in Nevada state court of drug trafficking and that the conviction has not been set aside.1 He 25 nonetheless maintains that he is not challenging his conviction: 26 27 28 1 The Supreme Court of Nevada affirmed the judgment of conviction on direct appeal, and thereafter affirmed the denial of state post-conviction relief. Plaintiff currently has a federal habeas petition challenging the conviction pending before the Court under No. 2:13-cv-02158-GMN-VCF. -2- 3 This case put in question the integrity of the judicial process ought not to be sullied by the use of improper police conduct to procure convictions. The plaintiff is not challenging the conviction or the sentence, but the improper procedure that was used from the beginning to the end of the case. . . . . 4 #1-1, at 3A (electronic docketing page 5). While purportedly not challenging the conviction, 5 plaintiff nonetheless alleges that the defendants “created this case,” referring to his criminal 6 case, through unconstitutional outrageous government conduct. He further includes a prayer 7 to have his criminal record expunged, as well, as, inter alia, two million dollars a year 8 monetary damages from January 2007 until the conclusion of this case, i.e., during his still 9 continuing incarceration on the criminal conviction that he seeks to have expunged. 1 2 10 When a federal civil rights plaintiff presents claims that necessarily challenge the 11 validity of his conviction, then the claims are not cognizable in the civil rights action “no matter 12 the relief sought (damages or equitable relief), [and] no matter the target of the prisoner’s suit 13 . . . if success in that action would necessarily demonstrate the invalidity of confinement or 14 its duration.” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)(emphasis in original); Heck v. 15 Humphrey, 512 U.S. 477 (1994). A plaintiff presenting claims necessarily challenging the 16 validity of his conviction first must establish that the confinement has been declared invalid 17 by a state tribunal authorized to make such a determination, expunged by executive order, 18 or called into question by the grant of a federal writ of habeas corpus. Heck, 512 U.S. at 486- 19 87. Heck applies to Bivens actions as well as to civil rights actions under §1983. See, e.g., 20 Martin v. Sias, 88 F.3d 774 (9 th Cir. 1996). 21 In screening the complaint, even under a liberal reading, the Court is not required to 22 accept as true plaintiff’s legal conclusions. The Court thus is not required to accept at face 23 value plaintiff’s unfounded conclusion that he is not challenging the validity of his conviction. 24 Plaintiff’s claims challenge the constitutionality of the law enforcement conduct that led to his 25 conviction. Such claims necessarily call into question the constitutional validity of the 26 conviction. He seeks to pursue an alleged entrapment defense in his criminal case instead 27 as a civil rights action. Here, as in Heck, plaintiff clearly is seeking “damages for allegedly 28 unconstitutional conviction or imprisonment, or for other harm caused by actions whose -3- 1 unlawfulness would render a conviction or sentence invalid.” 512 U.S. at 486. Indeed, 2 plaintiff himself acknowledges that he is challenging “the use of improper police conduct to 3 procure convictions . . . from the beginning to the end of the case, ” and he seeks to have his 4 criminal record expunged. It further is clear that plaintiff’s conviction has not been otherwise 5 overturned, both from the allegations of the complaint and otherwise. The complaint therefore 6 is Heck-barred.2 7 8 The Court finds that allowance of an opportunity to amend would be futile. Plaintiff is presenting a frivolous attempt to circumvent the Heck rule. 9 IT THEREFORE IS ORDERED that the Clerk shall file the complaint and that the 10 complaint shall be DISMISSED without prejudice for failure to state a claim upon which relief 11 may be granted. This dismissal shall count as a “strike” under 28 U.S.C. § 1915(g). 12 IT FURTHER IS ORDERED that plaintiff’s motion (#2) for leave to file a longer than 13 usual complaint is GRANTED IN PART only to the extent consistent with the remaining 14 provisions of this order. 15 The Clerk shall enter final judgment dismissing this action without prejudice. 16 DATED: 17 18 _________________________________ LLOYD D. GEORGE United States District Judge 19 20 21 22 23 24 25 26 27 28 2 Even if the Court were to indulge a highly dubious arguendo assumption that the claims instead are not Heck-barred, the claims then clearly would be untimely on their face. That is, the claims would have accrued in 2007 and thus would have become time-barred approximately five years ago. The applicable statute of limitations period for this Bivens action is two years. The statute of limitations for Bivens actions is the personal injury statute for the state in which the district court sits. Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir.1991). Nevada's personal injury statute of limitations is two years. N.R.S. § 11.190(4)(e). Nothing in the allegations of the complaint reflect any conceivably viable basis for tolling up until within two years of the filing of the present action. Either way, the complaint is subject to dismissal on its face. While the Court is dismissing the action without prejudice under Heck, plaintiff at all times remains responsible for timely presenting claims. Nothing herein suggests that plaintiff’s claims are or will become timely if they arguendo were not now Heck-barred. Nor does the Court suggest that the claims are not subject to other deficiencies. -4-