United States District Court, D. Nevada
DAMIEN N. PATTILLO, Plaintiff,
JOSEPH LOMBARDO, ET AL., Defendants.
REPORT AND RECOMMENDATION
FERENBACH UNITED STATES MAGISTRATE JUDGE
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
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.
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
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.
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.
Pattillo May Proceed In Forma Pauperis
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.
Whether Pattillo's Complaint Fails to State a Plausible
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.
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).
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 ...