United States District Court, D. Nevada
ORDER RE: ECF NO. 1-1, 3
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.
who is incarcerated within the Nevada Department of
Corrections (NDOC), at Ely State Prison (ESP), filed a civil
rights complaint, and subsequently an application to proceed
in forma pauperis. (ECF Nos. 1-1, 3.)
plaintiff filing a complaint in this court must either pay
the filing fee or submit a completed in forma pauperis (IFP)
application if he is unable to do so. 28 U.S.C. §
1915(a)(1); LSR 1-1.
plaintiff filing a complaint is an inmate and wishes to
proceed IFP, he must also “submit a certificate from
the institution certifying the amount of funds currently held
in the applicant's trust account at the institution and
the net deposits in the applicant's account for the six
months prior to the date of submission of the
application.” LSR 1-2; see also 28 U.S.C.
§ 1915(a)(2). If the inmate has been at the institution
for less than six months, “the certificate must show
the account's activity for this shortened period.”
prisoner brings a civil action IFP, the prisoner is still
required to pay the full $350 filing fee. 28 U.S.C. §
1915(b)(1). The court will assess and collect (when funds
exist) an initial partial filing fee that is calculated as 20
percent of the greater of the average monthly deposits or the
average monthly balance for the six-month period immediately
preceding the filing of the complaint. 28 U.S.C. §
1915(b)(1)(A)-(B). After the initial partial filing fee is
paid, the prisoner is required to make monthly payments equal
to 20 percent of the preceding month's income credited to
the prisoner's account. 28 U.S.C. § 1915(b)(2). The
agency that has custody of the prisoner will forward payments
from the prisoner's account to the court clerk each time
the account exceeds $10 until the filing fees are paid. 28
U.S.C. § 1915(b)(2).
regular filing fee is $400, consisting of the $350 filing fee
and a $50 administrative fee. If an inmate does not qualify
for IFP status, he must pay the full $400 filing fee. If the
inmate qualifies for IFP status, the $50 administrative fee
is waived, and the inmate will only pay the $350 filing fee
submitted an IFP application, but not the required financial
certificate. Plaintiff has 30 days to file the required
financial certificate or pay the full $400 filing fee, or
this action will be dismissed without prejudice.
Plaintiff has filed his completed IFP application or paid the
filing fee, the court will screen the complaint pursuant to
28 U.S.C. § 1915(e)(2)(B) or 28 U.S.C. § 1915A, or
both. Both require dismissal of a complaint, or any portion
thereof, that is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. If
the complaint is dismissed on screening, there will be no
refund of the filing fee, and an inmate proceeding IFP is
still required to pay the $350 filing fee over time.
court has undertaken a preliminary review of Plaintiff's
complaint and finds it is likely that Plaintiff's civil
rights complaint under section 1983 would be dismissed as he
includes no factual allegations in his complaint to support
his contention that his constitutional rights were violated.
U.S.C. § 1983 provides a mechanism for the private
enforcement of substantive rights conferred by the
Constitution and federal statutes. Section 1983 “is not
itself a source of substantive rights, but merely provides a
method for vindicating federal rights elsewhere
conferred.” Albright v. Oliver, 510 U.S. 266,
271 (1994) (internal quotation marks and citation omitted).
To state a claim under section 1983, a plaintiff must allege:
(1) his or her civil rights were violated, (2) by a person
acting under the color of state law. West v. Atkins,
487 U.S. 42, 48-49 (1988). To adequately plead the section
1983 elements, a complaint must identify what constitutional
right each defendant violated, and provide sufficient facts
to plausibly support each violation. See e.g., Jones v.
Williams, 297 F.3d 930, 934 (9th Cir. 2002) (noting
defendants must personally participate in misconduct to be
liable under section 1983). The "threshold inquiry in a
§ 1983 suit" requires courts "to 'identify
the specific constitutional right' at issue."
Manuel v. City of Joliet, 137 S.Ct. 911, 920 (2017)
(citing Albright, 510 U.S. at 271). "After
pinpointing that right, courts still must determine the
elements of, and rules associated with, an action seeking
damages for its violation." Id. (citing
Carey v. Piphus, 435 U.S. 247, 257-58 (1978)).
Plaintiff is also required to submit an amended complaint
within 30 days of the date of this order. If an amended
complaint is not filed within 30 days, this action will be
dismissed. Plaintiff should keep several things in mind in
drafting an amended complaint:
(1) Insofar as he takes issue with a State court conviction
or sentence and the effect of a successful claim would
necessarily imply the invalidity of his conviction or
sentence, his action is barred under Heck v.
Humphrey, 512 U.S. 477 (1994), unless and until the
underlying conviction or sentence has been reversed on direct
appeal, expunged, declared invalid, or called into question
by a federal's court's issuance of a writ of habeas
(2) A prosecutor is protected by absolute immunity from
liability for damages under section 1983 "when
performing the traditional functions of an advocate."
Kalina v. Fletcher, 522 U.S. 118, 131 (1997)
(citations omitted). Prosecutors are entitled to qualified
immunity, rather than absolute immunity, when they perform
administrative or investigative functions normally performed
by a detective or police officer. Imbler v.
Pachtman, 424 U.S. 409, 424 (1976); U.S. at 430-31;
Kalina v. Fletcher, 522 U.S. 118, 125 (1997);
Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir.
(3) Claims for ineffective assistance of counsel are not
recognized under section 1983 because specific appellate and
habeas statutes apply to such a claim instead. See Nelson
v. Campbell, 541 U.S. 637, 643 (2004). Additionally, a
public defender representing a client in the lawyer's
traditional adversarial role is not a state actor for
purposes of section ...