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Torres v. Stermitz

United States District Court, D. Nevada

March 7, 2018

MANOLO LEE TORRES, Plaintiff,
v.
MATT STERMITZ, et al., Defendants.

          REPORT AND RECOMMENDATION OF U.S. 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 LR IB 1-4. Before the court is Manolo Torres's (“plaintiff”) application to proceed in forma pauperis (ECF No. 1) and his pro se complaint (ECF No. 1-1). Having reviewed the record, the court recommends that plaintiff's application to proceed in forma pauperis be granted, and that the complaint be dismissed as detailed below.

         I. IN FORMA PAUPERIS APPLICATION

         As set forth in 28 U.S.C. § 1915(a), the court may authorize a plaintiff to proceed in forma pauperis if he or she is unable to pay the prescribed court fees. The plaintiff need not “be absolutely destitute to enjoy the benefits of the statute.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Based on plaintiff's application, the court finds that plaintiff is unable to pay the filing fee in this matter. (See ECF No. 1.) The court therefore recommends that plaintiff's application to proceed in forma pauperis be granted.

         II. LEGAL STANDARD

         Applications to proceed in forma pauperis are governed by 28 U.S.C. § 1915. Section 1915 provides, in relevant part, that “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. § 1915(e)(2)(B) (2012). 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 the court applies the same standard under section 1915 when reviewing the adequacy of a complaint. See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

         Under Rule 12(b)(6), the court must dismiss the complaint if it fails to “state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Courts accept as true all well-pled factual allegations, set aside legal conclusions, and verify that the factual allegations state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Although the complaint need not contain detailed factual allegations, it must offer more than “a formulaic recitation of the elements of a cause of action” and “raise a right to relief above a speculative level.” Twombly, 550 U.S. at 555.

         The complaint is construed in a light most favorable to the plaintiff. Chubb Custom Ins. Co. v. Space Systems/Loral Inc., 710 F.3d 946, 956 (9th Cir. 2013). The court takes particular care when reviewing the pleadings of a pro se party, for a more forgiving standard applies to litigants not represented by counsel. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Still, a liberal construction may not be used to supply an essential element of the claim not initially pled. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). If dismissal is appropriate, a pro se plaintiff must be given some notice of the deficiencies of his or her complaint, and leave to amend, unless the opportunity to amend would be futile. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). Despite this leniency, a district court may in its discretion dismiss an in forma pauperis complaint if the claim “lacks an arguable basis in either law or fact.” Id. This includes claims based on untenable legal conclusions (e.g., claims against defendants who are immune from suit) or fanciful factual allegations. See Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984).

         III. DISCUSSION

         A. Background

         Plaintiff is a pretrial detainee currently incarcerated at Humboldt County Detention Center. (ECF No. 1-1 at 1.) Proceeding pro se and pursuant to 42 U.S.C. § 1983, plaintiff brings civil rights claims against Humboldt County Public Defender Matt Stermitz (“Stermitz”), City of Winnemucca, Humboldt County, and Washoe County Crime Lab. (Id.) Plaintiff's allegations arise from his state criminal prosecution for felony driving under the influence of alcohol (“DUI”) in the Justice Court of Union Township, County of Humboldt. (Id. at 3-6, 13.)

         On July 13, 2017, plaintiff was involved in a traffic collision at an intersection in Winnemucca, Nevada. (Id. at 15.) According to plaintiff, he lawfully yielded and proceeded through the intersection, but a car “ran a stop sign on the north and ran into the right front of [plaintiff's] car.” (Id. at 3.) Winnemucca Police arrived and took statements from plaintiff, his passenger, and the driver. (Id. at 3, 5.) Plaintiff was then arrested for felony DUI and misdemeanor failure to yield. (Id. at 15-16.)

         In Count I, plaintiff outlines a number of grievances against his public defender, Stermitz. Plaintiff claims that Stermitz offered “no real answers” to plaintiff during their initial meeting, refused to accept plaintiff's calls, “went on vacation, ” and did not engage in discovery. (Id.) Stermitz also allegedly forged plaintiff's signature on a document waiving his right to a preliminary hearing. (Id. at 4.) Plaintiff filed a police report regarding the forgery and appears to takes issue with Stermitz's continued representation of plaintiff. (Id.) Finally, plaintiff claims that Stermitz violated his right to due process of law. (Id.)

         In Count II, plaintiff describes several deficiencies in his arrest and criminal proceeding. First, plaintiff states that “his first DUI was 9 years ago” and, without any elaboration, concludes that his bail is set at an excessive amount - $50, 195. (Id. at 5.) Second, plaintiff contends that Winnemucca Police erroneously reported “the accident site 6 blocks from where it happened.” (Id.) Third, plaintiff alleges that he never received his statement, his passenger's statement, nor the other driver's statement regarding the traffic incident, and he never received records of the “car camera and police camera, ” despite receiving “paper work” recording his receipt of these documents. (Id. at 5, 20.) Fourth, plaintiff claims that he never waived his right to a preliminary hearing or a speedy trial, but is “still sitting here in Humboldt County Jail 68 days later.” (Id.) Finally, plaintiff states that he received “part of [his requested] discovery 45 days after [he] was arrested [but] never received the rest [and] never had [an] attorney client meeting.” (Id.) Without further explanation, plaintiff claims that his rights under the Eighth Amendment, Fourth Amendment, Sixth Amendment, and Fourteenth Amendment were violated.

         In Count III, plaintiff again complains that Stermitz violated his due process rights. (Id. at 6.) Stermitz ignored plaintiff's calls, denied plaintiff the opportunity to receive a preliminary hearing, and refused to “consider anything but [plaintiff] being guilty.” (Id.) Stermitz also exhibited “anger” that made attorney-client communication impossible, and yet plaintiff has not been appointed new defense council. (Id.) Plaintiff emphasizes that his involuntary waiver to the preliminary hearing ...


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