2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 COREY D. CHRISTENSEN, Case No. 2:20-cv-01770-APG-DJA 6 Plaintiff, 7 ORDER v. 8 ROCHELLE T. NGUYEN, ET AL., 9 Defendants. 10 11 This matter is before the Court on Plaintiff Corey D. Christensen’s Application for Leave 12 to Proceed in forma pauperis (ECF No. 1) and Complaint (ECF No. 1-1) filed on September 21, 13 2019. 14 I. In Forma Pauperis Application 15 Plaintiff has submitted the affidavit required by § 1915(a) showing an inability to prepay 16 fees and costs or give security for them. Plaintiff is currently incarcerated and the Financial 17 Certificate submitted along with his Application indicates that his inmate account has a current 18 account balance of $0.00, an average monthly balance of $1.75, and an average monthly deposit 19 of $71.91, although the numbers are not completely legible. (ECF No. 1). Based on the financial 20 information provided, the Court finds that Plaintiff is unable to pay an initial partial filing fee. 21 Accordingly, Plaintiff’s request to proceed in forma pauperis is granted pursuant to § 1915(a). 22 However, even if this action is dismissed, the full filing fee must still be paid pursuant to 28 23 U.S.C. § 1915(b)(2), as amended by the Prison Litigation Reform Act of 1995. Plaintiff shall be 24 required to make payments of 20% of the preceding month’s deposits to the prisoner’s account, in 25 months that the account exceeds $10.00, until the full filing fee has been paid for this action. The 26 Court will now review Plaintiff’s Complaint. 27 / / / 1 II. Screening the Complaint 2 Upon granting a request to proceed in forma pauperis, a court must additionally screen a 3 complaint pursuant to § 1915(e). Federal courts are given the authority dismiss a case if the 4 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 5 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 6 1915(e)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 7 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 8 S.Ct. 1937, 1949 (2009) (internal quotations and citation omitted). When a court dismisses a 9 complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with 10 directions as to curing its deficiencies, unless it is clear from the face of the complaint that the 11 deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 12 (9th Cir.1995). 13 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 14 complaint for failure to state a claim upon which relief can be granted. Review under Rule 15 12(b)(6) is essentially a ruling on a question of law. North Star Intern. v. Arizona Corp. Comm'n, 16 720 F.2d 578, 580 (9th Cir. 1983). In considering whether the plaintiff has stated a claim upon 17 which relief can be granted, all material allegations in the complaint are accepted as true and are 18 to be construed in the light most favorable to the plaintiff. Russell v. Landrieu, 621 F.2d 1037, 19 1039 (9th Cir. 1980). Allegations of a pro se complaint are held to less stringent standards than 20 formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). 21 As a general matter, federal courts are courts of limited jurisdiction and possess only that 22 power authorized by the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). 23 Pursuant to 28 U.S.C. § 1331, federal district courts have original jurisdiction over “all civil 24 actions arising under the Constitution, laws, or treaties of the United States.” “A case ‘arises 25 under’ federal law either where federal law creates the cause of action or ‘where the vindication 26 of a right under state law necessarily turn[s] on some construction of federal law.’” Republican 27 Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) (quoting Franchise Tax Bd. 1 federal-question jurisdiction is governed by the “well-pleaded complaint rule.” Caterpillar, Inc. 2 v. Williams, 482 U.S. 386, 392 (1987). Under the well-pleaded complaint rule, “federal 3 jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly 4 pleaded complaint.” Id. Here, Plaintiff alleges civil rights violations under 42 U.S.C. § 1983 5 based on his attorney’s representation of him in connection with his arrest for intent to commit 6 larceny on or about May 28, 2019. He claims that attorney Matthew Lay only made one 7 statement in arguing for his release, which did not have his best interest in mind. Further, he 8 indicates that his attorney failed to visit him at CCDC in the 8 months and 1 week that he was 9 represented in the case, which appears to have been in state court. However, because the Court 10 finds that Plaintiff failed to properly bring a claim under Section 1983 (see discussion below), 11 federal question jurisdiction does not exist at this time. 12 42 U.S.C. § 1983 creates a path for the private enforcement of substantive rights created 13 by the Constitution and Federal Statutes. Graham v. Connor, 490 U.S. 386, 393-94 (1989). To 14 the extent that Plaintiff is seeking to state a claim under § 1983, a plaintiff “must allege the 15 violation of a right secured by the Constitution and the laws of the United States, and must show 16 that the alleged deprivation was committed by a person acting under color of law.” West v. 17 Atkins, 487 U.S. 42, 48-49 (1988). A person acts under “color of law” if he “exercise[s] power 18 possessed by virtue of state law and made possible only because the wrongdoer is clothed with 19 the authority of state law.” Id. 20 Plaintiff seeks to bring claims pursuant to 42 U.S.C. § 1983 alleging violation of his 21 Fourteenth Amendment rights against two attorneys, Rochelle T. Nguyen and Matthew Lay for 22 ineffective assistance of counsel. However, well-established precedent indicates that Fourth 23 Amendment principles, rather than Fourteenth Amendment due process principles, govern pretrial 24 deprivations of liberty. See, e.g., Manuel v. City of Joliet, 137 S.Ct. 911, 917–19 (2017); Albright 25 v. Oliver, 510 U.S. 266, 273-74 (1994) (noting that the Fourth Amendment, “not the more 26 generalized notion of ‘substantive due process,’ must be the guide” for analyzing such claims); 27 Galbraith v. County of Santa Clara, 307 F.3d 1119, 1127 (9th Cir.
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 COREY D. CHRISTENSEN, Case No. 2:20-cv-01770-APG-DJA 6 Plaintiff, 7 ORDER v. 8 ROCHELLE T. NGUYEN, ET AL., 9 Defendants. 10 11 This matter is before the Court on Plaintiff Corey D. Christensen’s Application for Leave 12 to Proceed in forma pauperis (ECF No. 1) and Complaint (ECF No. 1-1) filed on September 21, 13 2019. 14 I. In Forma Pauperis Application 15 Plaintiff has submitted the affidavit required by § 1915(a) showing an inability to prepay 16 fees and costs or give security for them. Plaintiff is currently incarcerated and the Financial 17 Certificate submitted along with his Application indicates that his inmate account has a current 18 account balance of $0.00, an average monthly balance of $1.75, and an average monthly deposit 19 of $71.91, although the numbers are not completely legible. (ECF No. 1). Based on the financial 20 information provided, the Court finds that Plaintiff is unable to pay an initial partial filing fee. 21 Accordingly, Plaintiff’s request to proceed in forma pauperis is granted pursuant to § 1915(a). 22 However, even if this action is dismissed, the full filing fee must still be paid pursuant to 28 23 U.S.C. § 1915(b)(2), as amended by the Prison Litigation Reform Act of 1995. Plaintiff shall be 24 required to make payments of 20% of the preceding month’s deposits to the prisoner’s account, in 25 months that the account exceeds $10.00, until the full filing fee has been paid for this action. The 26 Court will now review Plaintiff’s Complaint. 27 / / / 1 II. Screening the Complaint 2 Upon granting a request to proceed in forma pauperis, a court must additionally screen a 3 complaint pursuant to § 1915(e). Federal courts are given the authority dismiss a case if the 4 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 5 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 6 1915(e)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 7 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 8 S.Ct. 1937, 1949 (2009) (internal quotations and citation omitted). When a court dismisses a 9 complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with 10 directions as to curing its deficiencies, unless it is clear from the face of the complaint that the 11 deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 12 (9th Cir.1995). 13 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a 14 complaint for failure to state a claim upon which relief can be granted. Review under Rule 15 12(b)(6) is essentially a ruling on a question of law. North Star Intern. v. Arizona Corp. Comm'n, 16 720 F.2d 578, 580 (9th Cir. 1983). In considering whether the plaintiff has stated a claim upon 17 which relief can be granted, all material allegations in the complaint are accepted as true and are 18 to be construed in the light most favorable to the plaintiff. Russell v. Landrieu, 621 F.2d 1037, 19 1039 (9th Cir. 1980). Allegations of a pro se complaint are held to less stringent standards than 20 formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). 21 As a general matter, federal courts are courts of limited jurisdiction and possess only that 22 power authorized by the Constitution and statute. See Rasul v. Bush, 542 U.S. 466, 489 (2004). 23 Pursuant to 28 U.S.C. § 1331, federal district courts have original jurisdiction over “all civil 24 actions arising under the Constitution, laws, or treaties of the United States.” “A case ‘arises 25 under’ federal law either where federal law creates the cause of action or ‘where the vindication 26 of a right under state law necessarily turn[s] on some construction of federal law.’” Republican 27 Party of Guam v. Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) (quoting Franchise Tax Bd. 1 federal-question jurisdiction is governed by the “well-pleaded complaint rule.” Caterpillar, Inc. 2 v. Williams, 482 U.S. 386, 392 (1987). Under the well-pleaded complaint rule, “federal 3 jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly 4 pleaded complaint.” Id. Here, Plaintiff alleges civil rights violations under 42 U.S.C. § 1983 5 based on his attorney’s representation of him in connection with his arrest for intent to commit 6 larceny on or about May 28, 2019. He claims that attorney Matthew Lay only made one 7 statement in arguing for his release, which did not have his best interest in mind. Further, he 8 indicates that his attorney failed to visit him at CCDC in the 8 months and 1 week that he was 9 represented in the case, which appears to have been in state court. However, because the Court 10 finds that Plaintiff failed to properly bring a claim under Section 1983 (see discussion below), 11 federal question jurisdiction does not exist at this time. 12 42 U.S.C. § 1983 creates a path for the private enforcement of substantive rights created 13 by the Constitution and Federal Statutes. Graham v. Connor, 490 U.S. 386, 393-94 (1989). To 14 the extent that Plaintiff is seeking to state a claim under § 1983, a plaintiff “must allege the 15 violation of a right secured by the Constitution and the laws of the United States, and must show 16 that the alleged deprivation was committed by a person acting under color of law.” West v. 17 Atkins, 487 U.S. 42, 48-49 (1988). A person acts under “color of law” if he “exercise[s] power 18 possessed by virtue of state law and made possible only because the wrongdoer is clothed with 19 the authority of state law.” Id. 20 Plaintiff seeks to bring claims pursuant to 42 U.S.C. § 1983 alleging violation of his 21 Fourteenth Amendment rights against two attorneys, Rochelle T. Nguyen and Matthew Lay for 22 ineffective assistance of counsel. However, well-established precedent indicates that Fourth 23 Amendment principles, rather than Fourteenth Amendment due process principles, govern pretrial 24 deprivations of liberty. See, e.g., Manuel v. City of Joliet, 137 S.Ct. 911, 917–19 (2017); Albright 25 v. Oliver, 510 U.S. 266, 273-74 (1994) (noting that the Fourth Amendment, “not the more 26 generalized notion of ‘substantive due process,’ must be the guide” for analyzing such claims); 27 Galbraith v. County of Santa Clara, 307 F.3d 1119, 1127 (9th Cir. 2002) (affirming dismissal of 1 Sixth Amendment, an accused in a criminal prosecution is entitled to a speedy trial, an impartial 2 jury, knowledge of the accusations against him, the ability to call and confront witnesses, and to 3 assistance of counsel in his defense. U.S. Const. amend. VI. As relevant to this case, the Sixth 4 Amendment guarantees the right to effective assistance of counsel. Strickland v. Washington, 5 466 U.S. 668, 686, 104 S.Ct. 2052 (1984). 6 After pinpointing the specific constitutional rights at issue, “courts still must determine the 7 elements of, and rules associated with, an action seeking damages for its violation.” Manuel, 137 8 S.Ct. at 920 (citing Carey v. Piphus, 435 U.S. 247, 257–58, 98 S.Ct. 1042, (1978)). “In defining 9 the contours and prerequisites of a § 1983 claim, including its rule of accrual,” the Supreme Court 10 instructed courts to first look to the common law tort most analogous to the plaintiff’s claim. Id.; 11 Bradford v. Scherschligt, 803 F.3d 382, 387–88 (9th Cir. 2015) (citing Wallace v. Kato, 549 U.S. 12 384, 388–89, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007)). “Sometimes, that review of common law 13 will lead a court to adopt wholesale the rules that would apply in a suit involving the most 14 analogous tort. But not always.” Manuel, 137 S.Ct. at 920 (citing Wallace, 549 U.S. at 388–90, 15 127 S.Ct. 1091; Heck v. Humphrey, 512 U.S. 477, 483–487, 114 S.Ct. 2364, (1994)). “Common- 16 law principles are meant to guide rather than to control the definition of § 1983 claims, serving 17 ‘more as a source of inspired examples than of prefabricated components.’” Id. at 921 (quoting 18 Hartman v. Moore, 547 U.S. 250, 258, 126 S.Ct. 1695 (2006)). “In applying, selecting among, or 19 adjusting common-law approaches, courts must closely attend to the values and purposes of the 20 constitutional right at issue.” Id. 21 The common law tort of legal malpractice is the most analogous to Plaintiff’s claim. Legal 22 malpractice “is premised upon an attorney-client relationship, a duty owed to the client by the 23 attorney, breach of that duty, and the breach as proximate cause of the client's damages.” Hewitt 24 v. Allen, 118 Nev. 216, 220–21, 43 P.3d 345, 347 (2002) (citation omitted). Legal malpractice 25 focuses on whether the attorneys adhered to the standard of care in their representation. Mainor 26 v. Nault, 120 Nev. 750, 774, 101 P.3d 308, 324 (2004), abrogated on other grounds by Delgado v. 27 Am. Family Ins. Group, 125 Nev. 564, 570, 217 P.3d 563, 567 (2009). 1 To assert a claim for legal malpractice in Nevada, a plaintiff must allege: (1) an attorney- 2 client relationship; (2) a duty owed to the client by the attorney to use such skill, prudence, and 3 diligence as lawyers of ordinary skill and capacity possess in exercising and performing the tasks 4 which they undertake; (3) a breach of that duty; (4) the breach being the proximate cause of the 5 client's damages; and (5) actual loss or damage resulting from the negligence. Mainor, 120 Nev. 6 at 774, 101 P.3d at 324. To state a claim for ineffective assistance of counsel, a criminal 7 defendant must allege that counsel’s performance fell below the objective standard of 8 reasonableness and, but for counsel’s errors, the result of the trial would have been different. 9 Strickland, 466 U.S. at 688. 10 An action for legal malpractice or ineffective assistance of counsel does not accrue until 11 the underlying proceeding or criminal case is resolved. In typical civil cases, where “there has 12 been no final adjudication of the client’s case in which the malpractice allegedly occurred, the 13 element of injury or damage remains speculative and remote, thereby making premature the cause 14 of action for professional negligence.” K.J.B., Inc. v. Drakulich, 107 Nev. 367, 369, 811 P.2d 15 1305, 1306 (1991) (citation omitted). Damages accrue upon the resolution of the underlying legal 16 action. Hewitt, 118 Nev. at 221. Likewise, a criminal defendant cannot state a claim of 17 ineffective assistance of counsel until he has suffered prejudice (i.e., damages), even though he 18 reasonably believes counsel committed errors or omissions during the course of the proceedings. 19 Clark v. Robison, 113 Nev. 949, 951, 944 P.2d 788, 790 (1997) (noting that a “ ‘no relief–no 20 harm’ approach” was specifically adopted because “proximate cause does not exist until post- 21 conviction or appellate relief is granted”) (quoting Morgano v. Smith, 110 Nev. 1025, 1029, 879 22 P.2d 735, 737 (1994)). 23 The Nevada Supreme Court has expressly held that criminal defendants’ claims for 24 attorney malpractice “do not accrue or become actionable until they are granted appellate or post- 25 conviction relief.” Clark, 113 Nev. at 951–52, 944 P.2d at 790 (citation omitted). Thus, a 26 criminal defendant's “malpractice claim is not ripe until post-conviction or appellate relief is 27 granted,” and he must plead that he has obtained such relief to survive dismissal. Id.; see also 1 on a violation of the Sixth Amendment right to counsel accrued on the final termination of a 2 criminal proceeding in the plaintiff's favor “because prior to that date it was impossible for [him] 3 to file his claim for wrongful arrest, conviction, and incarceration because he was still subject to 4 retrial and could have been re-convicted on the underlying sexual assault claim. Such a conviction 5 would have eviscerated his civil rights claims.”). The purpose of delayed accrual is to prevent 6 litigation where the underlying damage is speculative or remote, since alleged damage may 7 vanish with successful prosecution of an appeal and the attorney's conduct may ultimately be 8 vindicated by an appellate court. Semenza v. Nevada Med. Liability Ins. Co., 104 Nev. 666, 668, 9 765 P.2d 184, 186 (1988) (citation and internal alterations omitted). 10 In addition, Supreme Court precedent shows that an ineffective assistance of counsel 11 claim must be raised in direct appeals, post-conviction, or habeas corpus proceedings—not a § 12 1983 action. Claims for ineffective assistance of counsel are not recognized under § 1983, despite 13 the statute’s “literal applicability” to the Sixth Amendment, because specific appellate and habeas 14 statutes apply. See Nelson v. Campbell, 541 U.S. 637, 643, 124 S.Ct. 2117 (2004). State 15 prisoners must seek initially post-conviction relief in the state courts. See Morgano, 110 Nev. at 16 1031 n.3, 879 P.2d at 739 n.3 (where a claim is “based primarily on the ineffective assistance of 17 counsel, post-conviction proceedings, rather than civil proceedings, provide such litigants a more 18 appropriate forum to present their claims”). Nevada law states that a claim for ineffective 19 assistance of counsel must first be raised on direct appeal of a conviction. See NRS 20 34.810(1)(b).5 Nevada also provides habeas relief for ineffective assistance of counsel claims. 21 See NRS 34.726(1). Where a state habeas remedy is available, a plaintiff cannot seek federal 22 habeas relief until he has first sought and been denied habeas relief in state courts. Preiser v. 23 Rodriguez, 411 U.S. 475, 477, 93 S.Ct. 1827 (1973). State prisoners must exhaust their state 24 habeas claims before seeking relief under federal habeas statutes. See 28 U.S.C. §§ 2241–66.6 25 Here, the Complaint (ECF No. 1-1) does not allege that Plaintiff has been granted 26 appellate, post-conviction, or habeas relief. Therefore, he has not pled the proximate cause 27 element to demonstrate accrual of Sixth Amendment claims and no cause of action is available 1 deficiencies noted above and should include specific factual allegations setting forth each claim, 2 against each defendant, in order for the Court to determine if his claims are able to survive 3 screening. 4 III. Conclusion 5 IT IS THEREFORE ORDERED that Plaintiff’s Motion/Application to Proceed in forma 6 pauperis (ECF No. 1) is granted. Plaintiff shall not be required to pay an initial partial filing fee. 7 However, even if this action is dismissed, the full filing fee must still be paid pursuant to 28 8 U.S.C. § 1915(b)(2). 9 IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to its 10 conclusion without the necessity of prepaying any additional fees or costs or giving security 11 therefor. This Order granting leave to proceed in forma pauperis shall not extend to the issuance 12 of subpoenas at government expense. 13 IT IS FURTHER ORDERED that pursuant to 28 U.S.C. § 1915(b)(2), the Clark County 14 Detention Center shall pay to the Clerk of the United States District Court, District of Nevada, 15 twenty percent of the preceding month’s deposits to Plaintiff’s account (inmate #1195847), in the 16 months that the account exceeds $10.00, until the full $350 filing fee has been paid for this action. 17 If Plaintiff should be transferred and become under the care of the Nevada Department of 18 Corrections, the CCDC Accounting Supervisor is directed to send a copy of this order to the 19 attention of the Chief of Inmate Services for the Nevada Department of Corrections, P.O. Box 20 7011, Carson City, NV 89702, indicating the amount that Plaintiff has paid toward his filing fee, 21 so that funds may continue to be deducted from Plaintiff’s account. The Clerk shall send a copy 22 of this order to the CCDC Accounting Supervisor, 330 S. Casino Center Blvd., Las Vegas, NV 23 89101. 24 IT IS FURTHER ORDERED that the Clerk of the Court shall file Plaintiff’s Complaint 25 (ECF No. 1-1), but shall not issue summons. 26 IT IS FURTHER ORDERED that the Complaint is dismissed without prejudice for failure 27 to state a claim upon which relief can be granted, with leave to amend. Plaintiff will have until 1 chooses to amend the complaint, Plaintiff is informed that the Court cannot refer to a prior 2 pleading (i.e., the original complaint) in order to make the amended complaint complete. This is 3 because, as a general rule, an amended complaint supersedes the original complaint. Local Rule 4 15-1(a) requires that an amended complaint be complete in itself without reference to any prior 5 pleading. Once a plaintiff files an amended complaint, the original complaint no longer serves 6 any function in the case. Therefore, in an amended complaint, as in an original complaint, each 7 claim and the involvement of each Defendant must be sufficiently alleged. Failure to comply 8 with this Order may result in the Court recommending that this action be dismissed. 9 10 DATED: October 19, 2020. 11 DANIEL J. ALBREGTS 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27