Calvin Leslie v. Dr. Bernstein, et al.

• Court: District Court, D. Nevada
• Decided: October 20, 2025
• Docket: 3:25-cv-00521
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 CALVIN LESLIE, Case No.: 3:25-cv-00521-ART-CSD

4 Plaintiff Order

5 v. Re: ECF Nos. 1, 1-1, 1-2

6 DR. BERNSTEIN, et al.,

7 Defendants

8 9 Plaintiff, who is an inmate in the custody of the Nevada Department of Corrections 10 (NDOC), has filed an application to proceed in forma pauperis (IFP) (ECF No. 1), a pro se 11 complaint (ECF No. 1-1), and a motion for appointment of counsel (ECF No. 1-2). 12 I. IFP APPLICATION 13 A person may be granted permission to proceed IFP if the person “submits an affidavit 14 that includes a statement of all assets such [person] possesses [and] that the person is unable to 15 pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense 16 or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1). 17 The Local Rules of Practice for the District of Nevada provide: “Any person who is 18 unable to prepay the fees in a civil case may apply to the court for authority to proceed [IFP]. 19 The application must be made on the form provided by the court and must include a financial 20 affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1. 21 “[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some 22 particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 23 (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the 1 benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948). 2 An inmate submitting an application to proceed IFP must also “submit a certificate from 3 the institution certifying the amount of funds currently held in the applicant’s trust account at the 4 institution and the net deposits in the applicant’s account for the six months prior to the date of

5 submission of the application.” LSR 1-2; see also 28 U.S.C. § 1915(a)(2). If the inmate has been 6 at the institution for less than six months, “the certificate must show the account’s activity for 7 this shortened period.” LSR 1-2. 8 If a prisoner brings a civil action IFP, the prisoner is still required to pay the full amount 9 of the filing fee. 28 U.S.C. § 1915(b)(1). The court will assess and collect (when funds exist) an 10 initial partial filing fee that is calculated as 20 percent of the greater of the average monthly 11 deposits or the average monthly balance for the six-month period immediately preceding the 12 filing of the complaint. 28 U.S.C. § 1915(b)(1)(A)-(B). After the initial partial filing fee is paid, 13 the prisoner is required to make monthly payments equal to 20 percent of the preceding month’s 14 income credited to the prisoner’s account. 28 U.S.C. § 1915(b)(2). The agency that has custody

15 of the prisoner will forward payments from the prisoner’s account to the court clerk each time 16 the account exceeds $10 until the filing fees are paid. 28 U.S.C. § 1915(b)(2). 17 Plaintiff’s certified account statement indicates that, as of October 3, 2025, his average 18 monthly balance for the prior six months was $2.83, and his average monthly deposits were 19 $30.00. His current account balance, as of October 3, 2025, was $0.15. 20 Plaintiff’s application to proceed IFP will be granted, but the court will not require 21 payment of an initial partial filing fee. Whenever Plaintiff’s prison account exceeds $10, he must 22 make monthly payments in the amount of 20 percent of the preceding month’s income credited 23 to his account until the $350 filing fee is paid. 1 II. SCREENING 2 A. Standard 3 Under the statute governing IFP proceedings, “the court shall dismiss the case at any time 4 if the court determines that-- (A) the allegation of poverty is untrue; or (B) the action or appeal--

5 (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) 6 seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. 7 § 1915(e)(2)(A), (B)(i)-(iii). 8 In addition, under 28 U.S.C. § 1915A, “[t]he court shall review, before docketing, if 9 feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in 10 which a prisoner seeks redress from a governmental entity or officer or employee of a 11 governmental entity.” 28 U.S.C. § 1915A(a). In conducting this review, the court “shall identify 12 cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-- 13 (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks 14 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b)(1)-(2).

15 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 16 provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) and 17 28 U.S.C. § 1915A(b)(1) track that language. As such, when reviewing the adequacy of a 18 complaint under these statutes, the court applies the same standard as is applied under Rule 19 12(b)(6). See e.g. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Review under Rule 20 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 232 21 F.3d 719, 723 (9th Cir. 2000) (citation omitted). 22 The court must accept as true the allegations, construe the pleadings in the light most 23 favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 1 395 U.S. 411, 421 (1969) (citations omitted). Allegations in pro se complaints are “held to less 2 stringent standards than formal pleadings drafted by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 3 (1980) (internal quotation marks and citation omitted). 4 A complaint must contain more than a “formulaic recitation of the elements of a cause of

5 action,” it must contain factual allegations sufficient to “raise a right to relief above the 6 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 7 must contain something more … than … a statement of facts that merely creates a suspicion [of] 8 a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a 9 plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 10 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 11 A dismissal should not be without leave to amend unless it is clear from the face of the 12 complaint that the action is frivolous and could not be amended to state a federal claim, or the 13 district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 14 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990).

15 B. Plaintiff’s Complaint 16 In his complaint filed pursuant to 42 U.S.C. § 1983, Plaintiff asserts claims against Dr. 17 Bernstein, “Caseworker Jennifer”, and “Caseworker Lady,” all of North Vista Hospital. Plaintiff 18 alleges that he had a business called C&LM Housing Placement and Referral Services, and that 19 from 2017 to 2019, hospitals in Las Vegas would contact him about clients they claimed were 20 independent but who were in fact not, despite the fact his flyers stated independent living only. 21 (ECF No. 1-1 at 2-3.) Dr. Bernstein repeatedly contacted Plaintiff in 2018 asking for help in 22 setting up an independent living home, but unbeknownst to Plaintiff, Dr. Bernstein was working 23 with the police and, along with Jennifer, was trying to frame Plaintiff and did not tell Plaintiff the 1 truth about the clients he was asked to pick up from the hospital. (ECF No. 1-1 at 3.) Dr. 2 Bernstein knew Plaintiff was being targeted by the police but did not inform him. (Id.) Plaintiff 3 describes his claim as “Failure to Inform” and “Framed Me.” (Id.) 4 Plaintiff has failed to state any colorable claim for relief.

5 Even assuming Plaintiff’s allegation that Dr. Bernstein and Jennifer were working with 6 police were sufficient to state a plausible claim that they acted under color of state law for 7 purposes of § 1983, plaintiff does not explain what happened as a result of Dr. Bernstein and 8 Jennifer’s alleged cooperation with police, i.e., whether Plaintiff accepted the patients from the 9 hospital and what, if anything, happened as a result – such as an arrest, criminal charges and/or a 10 conviction. Without more, it is impossible to ascertain what claims Plaintiff might plausibly be 11 alleging. 12 To the extent Plaintiff’s allegation that Bernstein and Jennifer “framed” him means he 13 believes they entrapped him into committing an offense he would not otherwise have committed, 14 entrapment is not, standing alone, a cognizable constitutional violation. See Yoe v. Las Vegas

15 Metro Police Dep’t Vice Unit, No. 2:24-CV-02425-GMN-EJY, 2025 WL 2382515, at *2–3 (D. 16 Nev. June 16, 2025), report and recommendation adopted as modified sub nom. Yoe v. Las 17 Vegas Metro. Police Dep't Vice Unity, No. 2:24-CV-02425-GMN-EJY, 2025 WL 2382214 (D. 18 Nev. Aug. 15, 2025) (citing United States v. Russell, 411 U.S. 423, 430 (1973) and Sanchez v. 19 Washington, Case No. 21-5915 RJB, 2022 WL 2106164, at *3 (W.D. Wash. June 10, 2022)). 20 If what Plaintiff means by “framing” is that Dr. Bernstein and Jennifer manufactured a 21 crime that could be pinned on Plaintiff, it is possible he is attempting to allege a violation of his 22 due process right “not to be subjected to criminal charges on the basis of false evidence that was 23 deliberately fabricated by the government.” Miranda v. City of Casa Grande, 15 F.4th 1219, 1 1228 (9th Cir. 2021); see also Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th Cir. 2001). But if 2 this is what Plaintiff is alleging, he has not sufficiently stated his claim. 3 As noted above, he does not allege that he faced criminal charges as a result of Dr. 4 Bernstein’s and Jennifer’s actions. He does not allege what happened with any charges. If

5 Plaintiff was ultimately convicted on those charges but the conviction has not been invalidated, 6 expunged, reversed or called into question by a federal court’s issuance of a writ of habeas 7 corpus, the claim cannot be pursued in this § 1983 action, because success on this claim would 8 “necessarily imply the invalidity” of his conviction. See Heck v. Humphrey, 512 U.S. 477, 486– 9 87 (1994) (“We hold that, in order to recover damages for allegedly unconstitutional conviction 10 or imprisonment, or for other harm caused by actions whose unlawfulness would render a 11 conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has 12 been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal 13 authorized to make such determination, or called into question by a federal court's issuance of a 14 writ of habeas corpus, 28 U.S.C. § 2254.”) (internal punctuation and citations omitted). Cf.

15 McDonough v. Smith, 588 U.S. 109, 119–20 (2019) (“There is not a complete and present cause 16 of action . . . to bring a fabricated-evidence challenge to criminal proceedings while those 17 criminal proceedings are ongoing. Only once the criminal proceeding has ended in the 18 defendant’s favor, or a resulting conviction has been invalidated within the meaning of Heck, . . . 19 will the statute of limitations begin to run.”). 20 Finally, failing to inform someone that they are being investigated by the police does not 21 amount to a constitutional violation. Moulin v. City of Cent. Point, No. 1:17-CV-00857-CL, 2022 22 WL 2442236, at *13 (D. Or. Apr. 1, 2022), report and recommendation adopted, No. 1:17-CV- 23 00857-CL, 2022 WL 2440046 (D. Or. July 5, 2022) (“[T]he subjects of crimina[l] investigations 1 have no unabridged constitutional right to be informed that they are the subject of criminal 2 investigation.”). 3 Because it is possible -- if perhaps unlikely -- that Plaintiff could state a claim for relief if 4 granted leave to amend his complaint, the court will dismiss the complaint without prejudice,

5 with leave to amend. 6 III. MOTION FOR APPOINTMENT OF COUNSEL 7 Plaintiff has filed a motion for appointment of counsel. “[A] person [generally] has no 8 right to counsel in civil actions.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citing 9 Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981)). 28 U.S.C. § 1915(e)(1), however, 10 does allow the court to “request an attorney to represent any person unable to afford counsel.” 11 That being said, the appointment of counsel in a civil case is within the court’s discretion and is 12 only allowed in “exceptional cases.” See Palmer, 560 F.3d at 970 (citations omitted); see also 13 Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015). In “determining whether 14 ‘exceptional circumstances’ exist, a court must consider ‘the likelihood of success on the merits

15 as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of 16 the legal issues involved.’” Palmer, 560 F.3d at 970 (quoting Weygandt v. Look, 718 F.2d 952, 17 954 (9th Cir. 1983)); see also Cano v. Taylor, 739 F.3d 1213, 1218 (9th Cir. 2015). 18 At this juncture, Plaintiff has failed to state any claim for relief. Accordingly, Plaintiff’s 19 motion for appointment of counsel will be denied without prejudice. 20 IV. CONCLUSION 21 (1) Plaintiff’s IFP application (ECF No. 1) is GRANTED. The court will not require 22 payment of an initial filing fee. However, whenever Plaintiff’s prison account exceeds 23 $10, he is required to make monthly payments in the amount of 20 percent of the 1 preceding month’s income credited to his account until the full $350 filing fee is paid. 2 This 1s required even if the action is dismissed or is otherwise unsuccessful. The Clerk 3 must SEND a copy of this Order to the attention of Chief of Inmate Services for the 4 Nevada Department of Corrections at formapauperis@doc.nv.gov. 5 (2) The Clerk will FILE the complaint (ECF No. 1-1). 6 (3) The complaint will be DISMISSED WITHOUT PREJUDICE, WITH LEAVE TO 7 AMEND. 8 (4) The motion for appointment of counsel (ECF No. 1-2) is DENIED WITHOUT 9 PREJUDICE. 10 (5) The Clerk shall SEND Plaintiff the instructions for filing a civil rights complaint by 11 an incarcerated individual and form civil rights complaint by an inmate. 12 (6) Plaintiff has 30 DAYS from the date of this Order to file an amended complaint 13 curing the deficiencies noted above. The amended complaint must be complete in and of 14 itself without referring or incorporating by reference any previous complaint. Any 15 allegations, parties, or requests for relief from a prior complaint that are not carried 16 forwarded in the amended complaint will no longer be before the court. Plaintiff shall 17 check the box for the first amended complaint on the court’s form civil rights complaint. 18 If Plaintiff fails to file an amended complaint within the 30 days, this action may be 19 dismissed. 20) IT IS SO ORDERED. 21]| Dated: October 20, 2025

Craig S. Denney 23 United States Magistrate Judge