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Peck v. Dorsey

United States District Court, D. Nevada

December 3, 2019

FRANK M. PECK, Plaintiff,



         Before the Court are Plaintiff s Amended Complaint, ECF No. 14, Motion for Temporary Restraining Order, ECF No. 15, and Motion for Preliminary Injunction, ECF No. 16. Plaintiff is representing himself Pro se and Defendants have not made an appearance. This matter is-essentially-a collateral attack on Plaintiff s ongoing habeas petition before Defendant Judge Dorsey. Having considered Plaintiffs motions, the record in this case, and applicable law, the Court dismisses Plaintiff s motions sua sponte pursuant to its screening authority under 28 U.S.C.§ 1915A.


         Plaintiff filed an am ended Pro se § 1983 complaint on August 29, 2019, seeking a temporary restraining order and a preliminary injunction against Judge Dorsey, Ms. Kirschner (his appointed attorney from the Federal Public Defenders for the District of Nevada), and various anonymous John and Jane Doe attorneys. ECF No. 14. All of Plaintiff s claims against the Defendants arise from their involvement in Plaintiff s pending habeas petition before Judge Dorsey, Peck v. Williams, Case No. 17-cv-01620.

         Plaintiff alleges that Judge Dorsey "violated [his] 'anti-interference right' in presentation of [his] constitutional] and habeas claims," violated his First Amendment right to petition the federal government for redress of grievances, and violated his Fourteenth Amendment right to due process. Id. at 2. In particular, Plaintiff alleges that Judge Dorsey violated his First Amendment rights by appointing Ms. Kirschner to be his attorney over his objections and that the appointment was done as retaliation for exercising his right to litigate. Id. In addition, Plaintiff alleges Judge Dorsey violated his rights by failing to screen his habeas petition pursuant to the rules governing review of § 2254 petitions. Id. at 4-5. Finally, Plaintiff alleges that Judge Dorsey violated his right to litigate without interference when she designated him a "restricted filer" in his habeas case. Id.

         Plaintiff alleges that Ms. Kirschner violated his right to litigate without interference by appearing in his habeas case without his authorization. Id. at 6. In addition, Plaintiff alleges that Ms. Kirschner violated the Nevada Rules of Professional Conduct by citing capital punishment cases as authority for her representation and by failing to address facts regarding the DNA evidence introduced against him in his habeas case. Id. Plaintiff raises similar claims against the Doe Defendants but does not provide additional facts for these claims. Id. at 7.

         Plaintiff seeks injunctive relief, removal of counsel and restoration of his pro se status, removal of Judge Dorsey from his habeas case, and that a new judge be assigned to his habeas case. Id. at 10. In addition, Plaintiff requests that the new judge appointed to his case screen his habeas petition as provided by the Rules Governing § 2254 Cases. Finally, Plaintiff requests that Ms. Kirschner and the Doe attorneys be referred to the Nevada Bar Association for sanctions.

         28 U.S.C. § 1915A

         The Prison Litigation Reform Act provides that a district court must review a complaint in a civil action in which a prisoner seeks redress from a governmental entity, officer, or employee before or soon after docketing. 28U.S.C. § l9l5A(a). "A court may screen a complaint pursuant to § 1915A only if, at the time the complaint is filed, the plaintiff is incarcerated or detained in any facility because he is accused of, convicted of, sentenced for, or adjudicated delinquent for violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary programs." Olivas v. Nevada ex rel. Dep't of Corr., 856F.3d 1281, 1284 (9th Cir. 2017) (per curiam) (quotation marks omitted).

         Upon review, the court shall identify cognizable claims or sua sponte dismiss the complaint (or any portion of the complaint) if the complaint is (1) frivolous, malicious, or fails to state a claim upon which relief can be granted or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § l9l5A(b). A complaint is frivolous if it is not grounded in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989), superseded in part by statute as stated in Lopez v. Smith, 203 F.3d 1122 (2000). A complaint is malicious if it was filed with the intention or desire to harm another. Washington v. Los Angeles Cty. Sheriffs Dep't, 833F.3d 1048, 1055 (9thCir. 2016).

         A complaint fails to state a claim if it does not meet the standards of Federal Rule of Civil Procedure 12(b)(6); that is, the complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face"to survive § 1915A. Nordstrom v. Ryan, 762F.3d903, 908 (9th Cir. 2014). The facts alleged in a complaint are to be taken as true and must "plausibly give rise to an entitlement for relief. "Ashcroft v. Iqbal, 556 U.S. 662, 664(2009). Mere legal conclusions "are not entitled to the assumption of truth. "Id. The complaint must contain more than a "formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). It must plead "enough facts to state a claim that is plausible on its face." Id. at 570.

         Pro se complaints are construed "liberally" and should generally be dismissed without prejudice unless it is absolutely clear that deficiencies in the complaint cannot be cured by amendment. Nordstrom, 762 F.3d at 908. (citing Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011)). If the court determines that any of the § 1915A(b) grounds are satisfied, it must dismiss the case and enter a "strike" against the plaintiff prisoner. Byrd v. Phoenix Police Dep't, 885 F.3d 639, 641 (9th Cir. 2018).

         42 U.S.C. § 1983

         Plaintiff s claims against Defendants are presented as § 1983 claims. Section 1983 provides a cause of action against a person acting under color of state law for violations of rights guaranteed by the federal Constitution or federal law. Pistor v. Garcia,791 F.3d 1104, 1114 (9th Cir. 2015). A person acts under color of state law where she has "exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." West v. Atkins,487U.S. 42, 49 (1988) (internal quotations omitted). Conduct that amounts to state action for purposes of the 14th Amendment is conduct under the color of state law for purposes of § 1983. Id. at 49; Lugar v. Edmondson Oil Co.,457 U.S. 922, 935 (1982). Federal officials and employees are "persons" for purposes of § 1983 if they conspired with or worked in concert with state officials under color of state law to deprive a person of her federal rights. Cabrera v. Martin, 973 F.2d 735, 741 (9th ...

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