United States District Court, D. Nevada
FRANK M. PECK, Plaintiff,
JENNIFER DORSEY, C.B. KIRSCHNER, and JOHN AND JANE DOE ATTORNEYS, Defendants.
ORDER DISMISSING ACTION PURSUANT TO 28 U.S.C.
STANLEY A. BASTIAN UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
U.S.C. § 1915A
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).
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).
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.
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).
U.S.C. § 1983
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 ...