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Mendoza v. Abowd

United States District Court, D. Nevada

June 30, 2017

DANIEL ANDRADE MENDOZA, Plaintiff,
v.
KAREN ABOWD, et. al., Defendants.

          REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE

         This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.

         Before die court is Plaintiffs Application to Proceed in Forma Pauperis (IFP) (ECF No. 1) and pro se Complaint (ECF No. 1-1).

         I. IFP APPLICATION

         A person may be granted permission to proceed IFP if the person "submits an affidavit that includes a statement of all assets such [person] possesses [and] that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress." 28 U.S.C. § 1915(a)(1); Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that 28 U.S.C. § 1915 applies to all actions filed IFP, not just prisoner actions).

         In addition, the Local Rules of Practice for the District of Nevada provide: "Any person who is unable to prepay the fees in a civil case may apply to the court for authority to proceed [IFP]. The application must be made on the form provided by the court and must include a financial affidavit disclosing the applicant's income, assets, expenses, and liabilities." LSR 1-1.

         "'[T]he supporting affidavits [must] state the facts as to [the] affiant's poverty with some particularity, definiteness and certainty.'" U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (quoting Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. I960)). A litigant need not "be absolutely destitute to enjoy the benefits of the statute." Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948).

         When a prisoner seeks to proceed without prepaying the filing fee:

[I]n addition to filing the affidavit filed [as described above], [the prisoner] shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined.

28 U.S.C. § 1915(a)(2). Notwithstanding the foregoing:

(1)... [I]f a prisoner brings a civil action...[IFP], the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of--
(A) the average monthly deposits to the prisoner's account; or
(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint of notice of appeal.
(2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.

28 U.S.C. § 1915(b)(1), (2).

         Plaintiffs certified account statement indicates that his average monthly balance for the last six months is $42.48, and his average monthly deposits are $51.67.

         Plaintiffs application to proceed IFP should be granted. He should be required to pay an initial partial filing fee in the amount of $10.33 (20 percent of $51.67). Thereafter, whenever his prison account exceeds $10, he should be required to make monthly payments in the amount of twenty percent of the preceding month's income credited to his account until the filing fees are paid.

         II. SCREENING

         A. Standard

         "The court shall dismiss the case at any time if the court determines that... the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § l9l5(e)(2)(B)(i)-(iii). This provision applies to all actions filed IFP, whether or not the plaintiff is incarcerated. See Lopez, 203 F.3d at 1129; see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam).

         In addition, "[t]he court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or office or employee of a governmental entity." 28 U.S.C. § l9l5A(a). "On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §1915A(b)(1)-(2).

         Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § l9l5(e)(2)(B)(ii) and 28 U.S.C. § l9l5A(b)(1) track that language. Thus, when reviewing the adequacy of a complaint under 28 U.S.C. § l9l5(e)(2)(B)(ii) or 28 U.S.C. § l9l5A(b)(1), the court applies the same standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Review under 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted).

         In reviewing the complaint under this standard, the court must accept as true the allegations, construe the pleadings in the light most favorable to the plaintiff, and resolve all doubts in the plaintiffs favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are "held to less stringent standards than formal pleadings drafted by lawyers[.]" Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks and citation omitted).

         A complaint must contain more than a "formulaic recitation of the elements of a cause of action, " it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice & Procedure § 1216, at 235-36 (3d ed. 2004)). At a minimum, a plaintiff should state "enough facts to state a claim to relief that is plausible on its face." Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         A dismissal should not be without leave to amend unless it is clear from the face of the complaint that die action is frivolous and could not be amended to state a federal claim, or the district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); O 'Loughlin v. Doe, 920 F.2d 614, 616 (9th Or. 1990).

         B. Plaintiff's Complaint

         Plaintiff names the following defendants: Karen Abowd (Supervisor Ward 1), Lori Bagwell (Supervisor Ward 3), John Barrette (Supervisor Ward 4), Brad Bonkowski (Supervisor Ward 2), Robert Crowell (Mayor), Susan Meriwether (District Court Clerk), James Wilson (District Court Judge), Jason Woodbury (Carson City District Attorney). (ECF No. 1-1 at 1-4.)

         Generally, Plaintiff claims he was discriminated against because of his race and national origin with respect to the policies and practices applicable to Chapter 34 Nevada post-conviction habeas petitions, and that die judge, court staff and assigned district attorney conspired to unnecessary delay resolving his petition and failed to properly serve him. The Complaint contains three counts and numerous exhibits, which the court will now address in turn.

         1. Count I

         In Count I, Plaintiff alleges that his rights were violated under 42 U.S.C. § 1981 and the Fourteendi Amendment. (ECF No. 1-1 at 6.) He states that he was denied me full and equal benefit of Nevada's habeas corpus statute and sentencing laws because he is a Mexican alien. (Id.) Specifically, he claims that he filed a state post-conviction petition for writ of habeas corpus on May 6, 2010, in the First Judicial District Court of the State of Nevada in and for the County of Carson City, and on May 11, 20 0, the court issued an order for the Carson City District Attorney to respond by June 24, 2010. (ECF No. 1-1 at 6, 19-20.) After six years and six months of trying to get relief from me court, Nevada Attorney General's Office, the Mexican consulate and embassy, the federal court and FBI, on November 16, 2016, Plaintiff filed a petition for writ of mandamus with the Nevada Supreme Court, asking for an order that the First Judicial District Court schedule a resentencing hearing and/or other relief to "comply with the speedy process of [his] habeas corpus which [had] been on the docket for five (5) years." (ECF No. 1-1 at 6, 22.) On December 16, 2016, the Nevada Supreme Court issued an order denying the petition. (ECF No. 1- 1 at 6, 25-26.) The Nevada Supreme Court stated that Plaintiff did not meet his burden of demonstrating intervention was warranted as the relief sought required the resolution of factual issues. (Id. at 25.) In a footnote, the Nevada Supreme Court stated the following:

Although it is not clear at this time that our intervention is warranted, we are concerned with the alleged delay in resolving petitioner's postconviction habeas petition. Petitioner has not provided a file-stamped copy of the postconviction petition, but he represents that it has been pending in the district court for five years. Other documents submitted with this writ petition indicate that new postconviction counsel, Michael Novi, was appointed in March or April 2015, but that he has not supplemented the petition or taken any other action. We expect that respondents will take appropriate action to ensure that this matter is resolved expeditiously.

(Id.) Judge James E. Wilson, Michael C. Novi, the Carson City District Attorney, the Attorney General, and Carson City Clerk were copied on the order. (Id. at 26.)

         Plaintiff claims that the Supreme Court's order triggered the local court to hold a belated evidentiary hearing (six years and eight months later). (ECF No. 1-1 at 6.) He claims that this violated his rights to a speedy process under the Fifth and Sixth Amendments, as well as his right under the First Amendment to redress of grievances. (Id.) He goes on to assert that this delay had the effect of depriving him of an opportunity for review of his case in the federal courts as the almost seven-year delay "has eaten into" his statute of limitations. (ECF No. 1-1 at 7.) He claims that he faces "exportation" at the end of his sentence, and as such, the delays have foreclosed future legal action which he claims, if successful, might qualify him for amnesty and the opportunity to stay as a citizen. (Id.) He states that the delay of getting into federal court has foreclosed the possibility of shortening his sentence and return to freedom. (Id.) He claims that through discovery, he will be able to show a pattern of deliberate delay. (Id.)

         Plaintiff further alleges that he can show tacit approval of Judge Wilson as there is a judicial policy of giving clerks power to approve all stipulated motions for continuances, and that the judge orders clerks to not provide copies of these actions directly to represented inmates. (Id.) He alleges that Judge Wilson "silent[ly] consented]" to the District Attorney's ...


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