United States District Court, D. Nevada
ORDER APPLICATION TO PROCEED IN FORMA PAUPERIS (EFC
NO. 3) AND COMPLAINT (ECF NO. 1-1)
FERENBACH, UNITED STATES MAGISTRATE JUDGE.
the Court are pro se Plaintiff Francisco Vidal's
application to proceed in forma pauperis (ECF No. 3)
and complaint (ECF No. 1-1). Vidal's in forma
pauperis application is granted and his complaint is
dismissed without prejudice, with leave to amend.
filings present two questions: (1) whether Vidal may proceed
in forma pauperis under 28 U.S.C. § 1915(e) and
(2) whether Vidal's complaint states a plausible claim
Whether Vidal May Proceed In Forma Pauperis
's application to proceed in forma pauperis is
granted. Under 28 U.S.C. § 1915(a)(1), a plaintiff may
bring a civil action “without prepayment of fees or
security thereof” if the plaintiff submits a financial
affidavit that demonstrates the plaintiff “is unable to
pay such fees or give security therefor.” According to
Vidal's affidavit, he does not have any income and he
does not have any funds available, as reflected on his inmate
balance history report. (ECF No. 3 at 4-5). Plaintiff's
application to proceed in forma pauperis is granted.
Whether Vidal's Complaint States a Plausible
the Court grants Vidal's application to proceed in
forma pauperis, it must review Vidal's complaint to
determine whether the complaint is frivolous, malicious, or
fails to state a plausible claim. 28 U.S.C. §
1915(e)(2)(B). Federal Rule of Civil Procedure 8(a)(2)
provides that a complaint must contain “a short and
plain statement of the claim showing that the [plaintiff] is
entitled to relief.” The Supreme Court's decision
in Ashcroft v. Iqbal states that to satisfy Rule
8's requirements, a complaint's allegations must
cross “the line from conceivable to plausible.”
556 U.S. 662, 680 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 547, (2007)). Rule 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. A complaint should be dismissed under Rule
12(b)(6) "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).
pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). If the 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. Cato v.
United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
complaint is styled as a class-action § 1983 complaint
against the Nevada Board of Parole Commissioners, doe
commissioners from the parole board, the Nevada State Public
Defender's Office, multiple police officers, doe
attorneys from the public defender's office, the Las
Vegas Police Department, and hearing officer Alonzo Pany.
(See ECF No. 1-1 at 1). Vidal is currently incarcerated.
(Id. at 8). Vidal alleges that he, along with every
person on parole, who has a parole revocation hearing, is
denied due process and equal protection. (Id. at 4).
Vidal does not allege that he has communicated with any other
person who has similar complaints against the defendants for
his class action. Vidal alleges that his parole officer
recommended revoking his parole because he was 26 minutes
late to an office visit and that his prison sentence will
expire in 2028. (Id. at 5). Vidal says he was not
allowed to speak at his hearing because the hearing officer,
Alonzo Pany, told him to be quiet. (Id. at 5). Vidal
also alleges that his public defender did nothing to prepare
him for the parole revocation hearing which violated his due
process right to effective assistance of
counsel. (Id. at 6). Vidal asks this
Court to review the entire parole revocation process because
the judge is not impartial and is subordinate to the accusing
parole officer. (Id. at 3-4). Vidal asks this Court,
“to compel the defendants to provide Effective (sic)
assistance of counsel as Due (sic) process requires.”
state a claim under § 1983, a plaintiff must plead that
the named defendant (1) acted "under color of state
law" and (2) "deprived the plaintiff of rights
secured by the Constitution or federal statutes."
Gibson v. U.S., 781 F.2d 1334, 1338 (9th Cir. 1986).
A public defender does not act under color or law when
performing a lawyer's traditional function as appointed
counsel to a defendant. See Georgia v. McCollum, 505
U.S. 42, 53, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992).
Supreme Court has held that a prisoner in custody cannot use
a § 1983 action to challenge "the fact or duration
of his confinement," but instead must seek federal
habeas corpus relief or the appropriate state relief.
Wilkinson v. Dotson, 544 U.S. 74, 78, 125 S.Ct.
1242, 161 L.Ed.2d 253 (2005) The Wilkinson court found that a
prisoner's “§ 1983 action is barred (absent
prior invalidation)--no matter the relief sought (damages or
equitable relief), no matter the target of the prisoner's
suit (state conduct leading to conviction or internal prison
proceedings)--if success in that action would
necessarily demonstrate the invalidity of confinement or its
duration.” Id. at 81-82 (emphasis in
the procedures used in parole hearings implicates, “the
prisoner's continuing confinement." Butterfield
v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997). "This
is true whether that denial is alleged to be improper based
upon procedural defects in the parole hearing or upon
allegations that parole was improperly denied on the
merits." Id. When a prisoner claims he is
incarcerated due to the "bias" of the judge or
state officials it, “implie[s] the invalidity of the
[prisoner's] confinement; therefore [the prisoner's]
sole remedy [is] a habeas corpus petition.”
McQuillion v. Schwarzenegger, 369 F.3d 1091, 1097
(9th Cir. 2004) (Finding that inmates did not have standing
to seek relief under § 1983 because “bias”
could not be addressed by an injunction and the validity of
confinement can only be addressed by a habeas corpus
has not alleged that any of the defendants acted under color
of law; plaintiff's appointed defender was not acting
under color of law if he or she was performing a lawyer's
function as appointed counsel during the parole revocation
hearing. Plaintiff does not have standing to bring a §
1983 claim to challenge the alleged procedural defects in the
parole process and the plaintiff's belief that the judge
and hearing officials were biased. Plaintiff's claims
challenge the invalidity of his confinement due to the
revocation of his parole, and thus he fails to state a §
1983 claim against the Nevada Board of Parole Commissioners.
Plaintiff may raise these allegations against the Nevada
Board of Parole Commissioners in a habeas corpus ...