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Rivera v. Wolfeson

United States District Court, D. Nevada

August 15, 2014

JUAN RIVERA, Plaintiff,
v.
STEVEN WOLFESON, et al., Defendants.

ORDER Civil Rights Complaint(#1)

GEORGE FOLEY, Jr., Magistrate Judge.

This matter comes before the Court on Plaintiff's Civil Rights Complaint (#1), filed on August 6, 2014.

BACKGROUND

Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his Fifth Amendment right against self-incrimination, unlawful seizure, and due process violations. Plaintiff alleges that Defendants with the Las Vegas Metropolitan Police Department ("LVMPD") wrongfully removed him from his home without a warrant or his consent, detained him at the Homicide Bureau, and proceeded to question him without reading him his Miranda rights or informing him that he was being investigated for a death penalty case. Plaintiff further alleges that Defendants with the District Attorney's Office, acting under color of law, knowingly and willfully prosecuted his case with full knowledge that the LVMPD officers violated his Constitutional rights and lied in their official statements. Plaintiff also brings this action against his appointed Clark County Public Defenders for violating his right to effective assistance of counsel. Plaintiff represents that his appointed counsel failed to investigate the case and advocate on his behalf. Plaintiff requests that all current and pending charges be dismissed, seeks monetary compensation, and moves this Court to order the disbarment and termination of those officials involved.

DISCUSSION

I. Application to Proceed In Forma Pauperis

To proceed in Forma Pauperis , a prisoner must submit an Application to Proceed in Forma Pauperis and financial affidavit with a signed acknowledgment. See 28 U.S.C. § 1915(a)(1). Here, Plaintiff failed to submit an application in lieu of the $350.00 filing fee to proceed with this action. The Court therefore is unable to proceed with Plaintiff's Civil Rights Complaint (#1) at this time. Plaintiff is advised that should he wish to proceed with this action, he must file a copy of his complaint with a completed Application to Proceed in Forma Pauperis pursuant to the above discussion.

II. Screening the Complaint

Upon granting a request to proceed in forma pauperis , a court must additionally screen a complaint pursuant to 28 U.S.C. § 1915(e). Though the Court did not grant Plaintiff's Application to Proceed in Forma Pauperis , the Court will proceed to screen Plaintiff's Complaint (#1) for informational purposes should Plaintiff wish to pursue this action.

1. Plaintiff's claims under 42 U.S.C. § 1983

Section 1983 provides a cause of action against persons acting under color of state law who have violated rights guaranteed by the Constitution. See Buckley v. City of Redding , 66 F.3d 188, 190 (9th Cir. 1995). Where a § 1983 action seeking damages alleges constitutional violations that would necessarily imply the invalidity of the conviction or sentence, the prisoner must establish that the underlying sentence or conviction has been invalidated on appeal, by a habeas petition, or through some similar proceeding. See Heck v. Humphrey , 512 U.S. 477, 483-87 (1994). The Supreme Court later clarified that Heck 's principle (also known as the "favorable termination" rule) applies regardless of the form of remedy sought, if the § 1983 action implicates the validity of an underlying conviction or a prison disciplinary sanction. See Edwards v. Balisok , 520 U.S. 641, 646-48 (1997); see also Whitaker v. Garcetti , 486 F.3d 572, 583-85 (9th Cir. 2007) (explaining that the "sole dispositive question is whether a plaintiff's claim, if successful, would imply the invalidity of [the plaintiff's] conviction."); Edwards v. Balisok , 520 U.S. 641, 646-48 (1997) (concluding that § 1983 claim was not cognizable because allegation of procedural defect would result in an automatic reversal of the prison disciplinary sanction.); Heck v. Humphrey , 512 U.S. 477, 483-87 (1994) (concluding that § 1983 claim was not cognizable because allegations were akin to malicious prosecution claim.)

Here, if successful, Plaintiff's claims for violations of his Fifth Amendment right against self-incrimination, unlawful seizure, and due process violations would imply the invalidity of Plaintiff's conviction, which has not been overturned.

If Plaintiff wishes to proceed with his action, he is advised that he must either submit an Application to Proceed in Forma Pauperis or pay the $350.00 filing fee pursuant to 28 U.S.C. § 1915(a)(1). Plaintiff is further advised that Local Rule 215 requires the use of the civil rights complaint form by anyone not represented by counsel. Accordingly,

IT IS HEREBY ORDERED that the Clerk of the Court shall send Plaintiff an Application for incarcerated individuals to Proceed in Forma Pauperis in the United States District Court for the District of Nevada. The Clerk of the Court shall also send Plaintiff a civil rights complaint form.

IT IS FURTHER ORDERED that Plaintiff shall have until September 12, 2014 to file an Application to proceed in forma pauperis or to submit the appropriate filing fee or the abovecaptioned case shall be dismissed.


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