United States District Court, D. Nevada
BLAKE L. ANDERSON, Plaintiff,
CITY OF LAS VEGAS, et al., Defendants.
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
the Court is Plaintiff Blake L. Anderson's
(“Anderson”), application to proceed in forma
pauperis (ECF No. 1), his pro se civil rights
complaint (ECF No. 1-1), and his motion for screening (ECF
No. 1-2). For the reasons stated below, the Court recommends
that Anderson's in forma pauperis application
(ECF No. 1) be granted, that his complaint (ECF No. 1-1) be
dismissed without prejudice, and without leave to amend, and
that the motion for screening (ECF No. 1-2) be denied as
moot, in light of this report and recommendation.
IN FORMA PAUPERIS APPLICATION
person may be granted permission to proceed in forma
pauperis (“IFP”) if the person
“submits an affidavit that includes a statement of all
assets such [person] possesses [and] that the person is
unable pay such fees or give security therefore. Such
affidavit shall state the nature of the action, defense or
appeal and affiant's belief that the person is entitled
to redress.” 28 U.S.C. § 1915(a)(1); Lopez v.
Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc)
(stating 28 U.S.C. § 1915 applies to all actions filed
IFP, not just prisoner actions).
Local Rules of Practice for the District of Nevada provide:
“Any person who is unable to prepay the fees in a civil
case may apply to the court for authority to proceed [IFP].
application must be made on the form provided by the court
and must include a financial affidavit disclosing the
applicant's income, assets, expenses, and
liabilities.” LSR 1-1.
supporting affidavit [must] state the facts as to [the]
affiant's poverty with some particularity, definiteness
and certainty.” U.S. v. McQuade, 647 F.2d 938,
940 (9th Cir. 1981) (quotation marks and citation omitted). A
litigant need not “be absolutely destitute to enjoy the
benefits of the statute.” Adkins v. E.I. Du Pont de
Nemours & Co., 335 U.S. 331, 339 (1948).
review of the application to proceed IFP reveals Anderson
cannot pay the filing fee; therefore, the Court recommends
that the application be granted.
civil rights complaints are governed by 28 U.S.C. §
1915A. Section 1915A 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. § 1915A(b). A complaint is frivolous when
“it lacks an arguable basis in either law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325
(1989). This includes claims based on legal conclusions that
are untenable (e.g., claims against defendants who are immune
from suit or claims of infringement of a legal interest which
clearly does not exist), as well as claims based on fanciful
factual allegations (e.g., delusional scenarios).
Id. at 327-28; see also McKeever v. Block,
932 F.2d 795, 798 (9th Cir. 1991). Dismissal for failure to
state a claim under § 1915A incorporates the same
standard applied in the context of a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), Wilhelm v.
Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012), which
requires dismissal where the complaint fails to “state
a claim for relief that is plausible on its face, ”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
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 must
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). The complaint need not
contain detailed factual allegations, but 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.
Particular care is taken in 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 should be given
leave to amend the complaint and notice of its deficiencies,
unless it is clear that those deficiencies cannot be cured.
Cato v. United States, 70 F.3d 1103, 1107 (9th Cir.
SCREENING OF COMPLAINT
complaint, Anderson sues Defendants City of Las Vegas, State
of Nevada, Deputy District Attorney William Rowles, Judge
Joseph Sciscento, and Deputy Public Defender Patricia Doyle
under 42 U.S.C. § 1983. (See ECF No. 1-1.)
Anderson alleges the following: On April 4, 2016, the
defendants “committed an illegal act of fraud.”
(Id. at 3.) After Anderson stated on the record that
he did not understand what was going on, Judge Sciscento
entered a plea of not guilty, failed to release Anderson, and
set bail at $300, 000. (Id.) Rowles “did
nothing” and Doyle illegally moved to be appointed to
Anderson's case, even though a conflict existed.
(Id.) Based on these allegations, Anderson asserts
violations of his due process rights and seeks monetary
damages. (Id. at 4-5, 8.)
U.S.C. § 1983 aims “to deter state actors from
using the badge of their authority to deprive individuals of
their federally guaranteed rights.” Anderson v.
Warner, 451 F.3d 1063, 1067 (9th Cir. 2006) (quoting
McDade v. West, 223 F.3d 1135, 1139 (9th Cir.
2000)). The statute “provides a federal cause of action
against any person who, acting under color of state law,
deprives another of his federal rights[, ]” Conn v.
Gabbert, 526 U.S. 286, 290 (1999), and is “merely
. . . the procedural device for enforcing substantive
provisions of the Constitution and federal statutes.”
Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.
1991). Claims under § 1983 require the plaintiff to
allege (1) the violation of a federally-protected right by
(2) a person or official who acts under the color of state
law. Anderson v. Warner, 451 F.3d 1063, 1067 (9th
§ 1983 is not a backdoor through which a federal court
may overturn a state court conviction or award relief related
to the fact or duration of a sentence. Section 1983 and
“the federal habeas corpus statute . . . both provide
access to the federal courts ‘for claims of
unconstitutional treatment at the hands of state officials, .
. . [but] they different in their scope and
operation.'” Ramirez v. Galaza, 334 F.3d
850, 854 (9th Cir. 2003) (quoting Heck v. Humphrey,
512 U.S. 477, 48 (1994)). Federal courts must take care to
prevent prisoners from relying on § 1983 to subvert the
differing procedural requirements of habeas corpus
proceedings under 28 U.S.C. § 2254. Heck, 512
U.S. at 486-87; Simpson v. Thomas, 528 F.3d 685, 695
(9th Cir. 2008). When a prisoner challenges the legality or
duration of his custody, raises a constitutional challenge
which could entitle him to an earlier release, or seeks
damages for purported deficiencies in his state court
criminal case, which effected a conviction or lengthier
sentence, his sole federal remedy is a writ of habeas
corpus. Edwards v. Balisok, 520 U.S. 641, 648
(1997); Heck, 512 U.S. at 481; Wolf v.
McDonnell, 418 U.S. 539, 554 (1974); Preiser v.
Rodriguez, 411 U.S. 475 (1973); Simpson, 528