United States District Court, D. Nevada
FOLEY, JR. United States Magistrate Judge
matter is before the Court on Plaintiff’s Application
to Proceed in Forma Pauperis (ECF No. 1), filed on August 8,
Count I, Plaintiff alleges that his right to due process of
the law was violated by Defendant Diego Grimaldo of the
United States Marshal Service and John Doe of the U.S.
Attorney’s Office. Specifically, Plaintiff asserts that
on August 5, 2014, during an evidentiary hearing, Defendant
falsely testified as to Plaintiff’s alleged
“flight” and attempt to conceal his identity. In
Count II, Plaintiff alleges that his right to a fair trial
and due process of the law was violated on August 18, 2014
when Defendant testified before a jury at Plaintiff’s
trial. He alleges that Defendant’s testimony was false
and misled the jury. In Count III, Plaintiff alleges that his
right against unreasonable search and seizure and right to
due process of the law was violated. Plaintiff was subject to
a traffic stop on May 20, 2011 and he alleges that the
traffic stop, arrest, and subsequent incarceration was
unconstitutional because the warrant was void, he was not
charged until June 1, 2011, and because a detective admitted
to lying under oath before the federal grand jury that
indicted Plaintiff. According to his complaint, Plaintiff was
convicted and is in custody at High Desert State Prison.
Application to Proceed In Forma Pauperis
filed this instant action and attached a financial affidavit
to his application and complaint as required by 28 U.S.C.
§ 1915(a). Reviewing Plaintiff’s financial
affidavit pursuant to 28 U.S.C. § 1915, the Court finds
that Plaintiff is unable to pre-pay the filing fee. As a
result, Plaintiff's request to proceed in forma
pauperis in federal court is granted.
Screening the Complaint
granting a request to proceed in forma pauperis, a
court must additionally screen a complaint pursuant to 28
U.S.C. § 1915(e). Specifically, federal courts are given
the authority to dismiss a case if the action is legally
“frivolous or malicious,” fails to state a claim
upon which relief may be granted, or seeks monetary relief
from a defendant/third party plaintiff who is immune from
such relief. 28 U.S.C. § 1915(e)(2). A complaint, or
portion thereof, should be dismissed for failure to state a
claim upon which relief may be granted “if it appears
beyond a doubt that the plaintiff can prove no set of facts
in support of his claims that would entitle him to
relief.” Buckey v. Los Angeles, 968 F.2d 791,
794 (9th Cir. 1992). A complaint may be dismissed as
frivolous if it is premised on a nonexistent legal interest
or delusional factual scenario. Neitzke v. Williams,
490 U.S. 319, 327–28 (1989). Moreover, “a finding
of factual frivolousness is appropriate when the facts
alleged rise to the level of the irrational or the wholly
incredible, whether or not there are judicially noticeable
facts available to contradict them.” Denton v.
Hernandez, 504 U.S. 25, 33 (1992). When a court
dismisses a complaint under § 1915(e), the plaintiff
should be given leave to amend the complaint with directions
as to curing its deficiencies, unless it is clear from the
face of the complaint that the deficiencies could not be
cured by amendment. See Cato v. United States, 70
F.3d 1103, 1106 (9th Cir. 1995).
Court shall liberally construe a complaint by a pro se
litigant. Eldridge v. Block, 832 F.2d 1132, 1137
(9th Cir. 2007). This is especially important for civil
rights complaints. Ferdik v. Bonzelet, 963 F.2d
1258, 1261 (9th Cir. 1992). However, a liberal construction
may not be used to supply an essential element of the claim
absent from the complaint. Bruns v. Nat’l Credit
Union Admin., 12 F.3d 1251, 1257 (9th Cir. 1997)
(quoting Ivey v. Board of Regents, 673 F.2d 266, 268
(9th Cir. 1982)).
12(b)(6) of the Federal Rules of Civil Procedure provides for
dismissal of a complaint for failure to state a claim upon
which relief can be granted. Review under Rule 12(b)(6) is
essentially a ruling on a question of law. See Chappel v.
Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir.
2000). A properly pled complaint must provide a “short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell
Atlantic Corp. v. Twombley, 550 U.S. 544, 555 (2007).
Although Rule 8 does not require detailed factual
allegations, it demands “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Papasan
v. Allain, 478 U.S. 265, 286 (1986)). The court must
accept as true all well-pled factual allegations contained in
the complaint, but the same requirement does not apply to
legal conclusions. Iqbal, 129 S.Ct. at 1950. Mere
recitals of the elements of a cause of action, supported only
by conclusory allegations, do not suffice. Id. at
1949. Secondly, where the claims in the complaint have not
crossed the line from plausible to conceivable, the complaint
should be dismissed. Twombly, 550 U.S. at 570.
complaint seeks relief for what appears to be alleged
violations of his Fourth, Fifth, and Fourteenth Amendment
rights. Plaintiff seeks damages pursuant to Bivens v. Six
Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999
(1971), for alleged violations of his constitutional rights.
In Bivens, the Supreme Court established the right
to bring a lawsuit for money damages against individual law
enforcement officials acting under color of federal law. A
Bivens action cannot be brought against the United
States, agencies of the United States or federal agents in
their official capacity. See FDIC v. Meyer, 510 U.S.
471, 486 (1994). Bivens actions against federal
employees are the “judicially crafted
counterpart” to claims against state actors arising
under 42 U.S.C. § 1983. See Chavez v. I.N.S.,
17 F.Supp.2d 1141, 1143 (S.D.Cal.1998).
1983 and “the federal habeas corpus statute ... both
provide access to the federal court ‘for claims of
unconstitutional treatment at the hands of state officials
... [but] they differ in their scope and operation.”
Pattillo v. Lombardo, 2017 WL 3622778, at *4 (D.
Nev. Aug. 23, 2017) (citing Ramirez v. Galaza, 334
F.3d 850, 854 (9th Cir. 2003)). In Heck v. Humphrey,
the Supreme Court held that a state prisoner may not maintain
a § 1983 claim for damages if a judgment in favor of the
plaintiff would necessarily imply the invalidity of his
conviction or sentence.” 512 U.S. 477, 480 (1994);
see also Clemons v. Williams, 2016 WL 1238229, at *2
(D. Nev. Mar. 29, 2016); Martin v. Sias, 88 F.3d
774, 775 (9th Cir.1996) (applying § 1983 rationale of
Heck to Bivens action). Accordingly, under
Heck, an action that challenges the validity of a
plaintiff’s criminal conviction or confinement is not
cognizable unless the plaintiff can prove that his or her
sentence has been reversed, expunged, ...