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Pattillo v. Lombardo

United States District Court, D. Nevada

August 23, 2017

DAMIEN N. PATTILLO, Plaintiff,
v.
JOSEPH LOMBARDO, ET AL., Defendants.

          REPORT AND RECOMMENDATION

          CAM FERENBACH UNITED STATES MAGISTRATE JUDGE

         This is a prisoner civil rights action filed under 42 U.S.C. § 1983. Before the Court are Plaintiff Damien N. Pattillo's Application to Proceed in forma pauperis (ECF No. 1) and Complaint (ECF No. 1-1). Pattillo's Motion to Proceed in forma pauperis is granted. For the reasons stated below, Pattillo's Complaint should be dismissed without prejudice.

         I. Background

         This matter involves pro se Plaintiff Damien N. Pattillo's § 1983 action against Clark County Sheriff Joseph Lombardo, Prosecutors Genevieve Draggs and Kelsey Einhorn, Clark County Public Defender Robert O'Brien, and former Nevada District Judge Valorie Vega for allegedly violating Pattillo's constitutional rights. The instant action is based on a purportedly unconstitutional plea agreement entered in a state court proceeding. Pattillo alleges that a condition of the plea agreement included the following deceptive, vague, and ambiguous language that violated his due process rights: “O.R. release upon entry of plea and if defendant ‘picks up or catches' another case while out on O.R. release the D.A. retains the right to argue for ‘habitual Criminal Status [at sentencing].” See ECF No. 1-1 at 7. After stipulating to that plea agreement, Pattillo was charged with some new crimes in a separate state court proceeding. For violating the plea agreement, the state district court adjudicated Pattillo a habitual criminal and sentenced Pattillo to life in prison with the possibility of parole after 10 years. Pattillo alleges, however, that he was never found guilty on those new charges. Pattillo alleges that those charges were subsequently dropped or dismissed. Other allegations in the Complaint suggest that those new charges have “yet to be substantiated.” See ECF No. 1-1 at 7 (“the D.A. could take me to trial the 10 to Life imposition is quite a length sentence to be imposed for a[n] allegation that has yet to be substantiated. I seek injunctive relief … until a conviction from guilt be determined.”), 9 (“surely my 5th and 14th amendment right has been violated, if in fact I'm innocent until proven guilty.”). The Court does not have specific information as to the current status of his underlying state court proceedings. The Court proceeds under the assumption that the new charges Pattillo refers to in his Complaint have been dismissed in their entirety.

         Pattillo brings a § 1983 civil rights action against Robert O'Brien, the Public Defender who represented Pattillo, for, among other things, the ineffective assistance of counsel for allowing Pattillo to stipulate to a plea agreement that he alleges violated his due process rights. Pattillo also brings suit against Prosecutors Genevieve Draggs and Kelsey Einhorn, and Judge Valorie Vega for inflicting cruel and unusual punishment in violation of the Eighth Amendment for their role in approving the plea agreement which led to the imposition of the ten-years-to-life sentence.

         In a separate incident, Pattillo is suing Clark County Sheriff Joseph Lombardo for violations of Pattillo's constitutional rights while Pattillo was incarcerated. Pattillo alleges that Clark County Jail Officers physically assaulted and then placed him in a small jail cell under humiliating and unsanitary conditions violating his constitutional rights. Pattillo seeks an award of damages from defendants and injunctive relief.

         II. Discussion

         Pattillo's filings present two questions for the Court: (1) whether Pattillo may proceed in forma pauperis; and (2) whether Pattillo's Complaint states a plausible claim for relief. Each is discussed below.

         A. Pattillo May Proceed In Forma Pauperis

         Pattillo's application to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a)(1) permits a plaintiff to bring a civil action “without prepayment of fees or security thereof” if the plaintiff submits a financial affidavit that demonstrates the plaintiff's “is unable to pay such fees or give security therefor.” Pursuant to § 1915(a)(1), Pattillo submitted a financial affidavit. See ECF No. 1. According to the affidavit, Pattillo is incarcerated. Pattillo's application to proceed in forma pauperis is granted.

         B. Whether Pattillo's Complaint Fails to State a Plausible Claim

         Because the Court grants Pattillo's application to proceed in forma pauperis, it must review Pattillo's Complaint to determine whether the Complaint is frivolous, malicious, or fails to state a plausible claim. The Court begins with a brief review of the legal standard guiding its review.

         a. Legal Standard

          Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d. 696, 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

         In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), a Federal Court must dismiss a prisoner's claim, “if the allegation of poverty is untrue, ” or if the action “is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.” See 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Fed.R.Civ.P. 12(b)(6), and the Court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the ...


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