United States District Court, D. Nevada
EDWARD F. PARKS, Plaintiff,
CHRISTY D. JOHNSON, et al., Defendants.
ORDER (1) ACCEPTING REPORT AND RECOMMENDATION, (2)
DENYING MOTION TO PROCEED IN FORMA PAUPERIS, (3) DENYING
MOTION FOR RELIEF, AND (4) DENYING MOTION TO SHOW CAUSE (ECF
NOS. 4, 10, 12, 14)
P. GORDON, UNITED STATES DISTRICT JUDGE
Complaint (ECF No. 1-1) names as defendants Christy D.
Johnson, Neil Robert Taylor, and Billy Sipe Jr. Although not
included in the caption, Parks also alleges a claim against
Rodney Head, the police chief of Bullhead City, Arizona at
the time of the alleged events. In Count I, Parks alleges
that, in March 2005, he and his wife were involved in a minor
car accident with another car driven by Johnson. Johnson
purportedly left the scene to call the police and made false
statements that ultimately resulted in Parks receiving a
five-year prison sentence with no evidence. He claims that
Johnson violated his First Amendment right to freedom from a
false statement. In Count II, Parks alleges that Sipe, the
attorney he retained to represent him in a previous criminal
case, told a judge that Parks committed another felony while
on supervised release. He contends that Sipes knew the true
facts but failed to make his case, despite the lack of
evidence, and Sipes encouraged Parks to take a plea deal,
despite his innocence. Sipes allegedly violated Parks'
Sixth Amendment right to counsel. In Count III, Parks alleges
that Head failed to examine the evidence in his case, and the
lack thereof, or investigate Johnson's false statements.
Parks alleges the criminal charges against him would have
been dropped or he would have been acquitted if not for the
wrongful handling of evidence and false statements. Parks
claims that Head violated his First Amendment right to
freedom from being wrongfully accused. He seeks $10 million
in damages and asks the court to vacate the prison sentence
and release him.
March 7, 2017, Magistrate Judge Leen entered a Report of
Findings and Recommendation recommending that I deny
Parks' application to proceed in forma pauperis because
Parks did not sign the financial certificate or
acknowledgment. ECF No. 10 at 2. Judge Leen also recommended
that I dismiss Parks' complaint because he challenges his
prior conviction which has not been overturned and because he
is asserting claims under 42 U.S.C. § 1983 against his
criminal defense attorney, who is not a state actor.
Id. at 5-6.
thereafter filed three documents. First, he filed a document
seeking to require the Clark County Sheriff to conduct an
investigation into Parks' imprisonment. ECF No. 12. Parks
next filed a motion to file objections to Judge Leen's
order. ECF No. 13. Parks contends that defendant Johnson made
false accusations against him and he was convicted of an
offense he did not commit. Finally, Parks filed a motion to
show cause why he should not be released. ECF No. 14. Like
his other filings, this motion is not entirely clear, but
Parks appears to be objecting that the Arizona courts did not
read the transcripts in his appeals of his conviction, that
his attorney failed to provide an effective defense, and
there was no evidence presented at an evidentiary hearing
(the purpose of which is unclear from the filing). Parks also
refers to some difficulty with obtaining a transcript and the
suspension of an attorney, apparently in relation to his
appeals in the Arizona courts.
conducted a de novo review. 28 U.S.C. § 636(b)(1). Judge
Leen properly notes that Parks did not sign his financial
certificate or acknowledgement. See ECF No. 4 at 5,
19. I therefore deny his motion to proceed in forma pauperis.
Leen also correctly states that Parks' criminal defense
attorney, defendant Billy Sipe, Jr., is not a state actor
when acting as court-appointed defense counsel. Miranda
v. Clark Cnty., Nev., 319 F.3d 465, 466 (9th Cir. 2003)
(citing Polk Cnty. v. Dodson, 454 U.S. 312 (1981)).
There are circumstances when a private actor's conduct
may be fairly attributable to the government. See
Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002). But
Parks does not assert any facts to suggest his defense
attorney's conduct is attributable to the state. Although
Judge Leen did not specifically address it, I note that in
addition to Sipe not being a state actor, there are no
allegations that would support a § 1983 claim against
defendant Johnson or the other private parties mentioned in
the complaint. There is no basis to conclude the private
individuals and a casino are state actors or that their
conduct is attributable to the state given Parks'
Judge Leen correctly notes that under the rule announced in
Heck v. Humphrey, if a judgment in the plaintiffs
favor in a § 1983 case “would necessarily imply
the invalidity of his conviction or sentence . . . the
complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated.” 512 U.S. 477, 487 (1994). Thus, to the
extent Parks seeks to invalidate his prior conviction and
sentence, which he clearly does in both his complaint and his
motion for relief, I dismiss his claims without prejudice to
refiling his claims should his criminal conviction later be
THEREFORE ORDERED that Magistrate Judge Leen's Report of
Findings and Recommendation (ECF No. 10) is accepted. The
application for leave to proceed in forma pauperis (ECF No.
4) is DENIED. The complaint (ECF Nos. 1-1, 11) is dismissed
with prejudice with respect to Parks' claims under 42
U.S.C. § 1983 against defendant Billy Sipe, Jr., Christy
D. Johnson, Tony Lurflmen, and the Edgewater Casino because
none of these defendants is a state actor. As to defendant
Rodney Head, the complaint is dismissed without prejudice to
refiling this claim should Parks' criminal conviction
later be invalidated. The motion for relief (ECF No. 13) and
motion for order to show cause why prisoner should be
released (ECF No. 14) are DENIED. The clerk of court is
instructed to close this case.
 Manager Tony Lurflmen and the
Edgewater Casino are listed in the caption but there are no
factual allegations or claims ...