Keller v. Balaam

• Court: District Court, D. Nevada
• Decided: July 15, 2025
• Docket: 3:25-cv-00224
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 DANIEL W. KELLER, Case No.: 3:25-cv-00224-ART-CSD 4 Plaintiff Report & Recommendation of United States Magistrate Judge 5 v. Re: ECF Nos. 1, 1-1 6 DARRIN BALAAM, et al., 7 Defendants 8 This Report and Recommendation is made to the Honorable Anne R. Traum, United 9 States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 10 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4. 11 Plaintiff has filed an application to proceed in forma pauperis (IFP) (ECF No. 1) and pro 12 se complaint (ECF No. 1-1). 13 I.IFP APPLICATION 14 A person may be granted permission to proceed IFP if the person “submits an affidavit 15 that includes a statement of all assets such [person] possesses [and] that the person is unable to 16 pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense 17 or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1). 18 The Local Rules of Practice for the District of Nevada provide: “Any person who is 19 unable to prepay the fees in a civil case may apply to the court for authority to proceed [IFP]. 20 The application must be made on the form provided by the court and must include a financial 21 affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” LSR 1-1. 22 23 1 “[T]he supporting affidavits [must] state the facts as to [the] affiant’s poverty with some 2 particularity, definiteness and certainty.” U.S. v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) 3 (quotation marks and citation omitted). A litigant need not “be absolutely destitute to enjoy the 4 benefits of the statute.” Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948).

5 An inmate submitting an application to proceed IFP must also “submit a certificate from 6 the institution certifying the amount of funds currently held in the applicant’s trust account at the 7 institution and the net deposits in the applicant’s account for the six months prior to the date of 8 submission of the application.” LSR 1-2; see also 28 U.S.C. § 1915(a)(2). If the inmate has been 9 at the institution for less than six months, “the certificate must show the account’s activity for 10 this shortened period.” LSR 1-2. 11 If a prisoner brings a civil action IFP, the prisoner is still required to pay the full amount 12 of the filing fee. 28 U.S.C. § 1915(b)(1). The court will assess and collect (when funds exist) an 13 initial partial filing fee that is calculated as 20 percent of the greater of the average monthly 14 deposits or the average monthly balance for the six-month period immediately preceding the

15 filing of the complaint. 28 U.S.C. § 1915(b)(1)(A)-(B). After the initial partial filing fee is paid, 16 the prisoner is required to make monthly payments equal to 20 percent of the preceding month’s 17 income credited to the prisoner’s account. 28 U.S.C. § 1915(b)(2). The agency that has custody 18 of the prisoner will forward payments from the prisoner’s account to the court clerk each time 19 the account exceeds $10 until the filing fees are paid. 28 U.S.C. § 1915(b)(2). 20 Plaintiff’s certified account statement indicates that his average monthly balance for the 21 last six months was $0, and his average monthly deposits were $0. 22 Plaintiff’s application to proceed IFP should be granted. Plaintiff should not be required 23 to pay an initial partial filing fee; however, whenever his prison account exceeds $10, he must 1 make monthly payments in the amount of 20 percent of the preceding month’s income credited 2 to his account until the $350 filing fee is paid. 3 II. SCREENING 4 A. Standard

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

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

5 (1980) (internal quotation marks and citation omitted). 6 A complaint must contain more than a “formulaic recitation of the elements of a cause of 7 action,” it must contain factual allegations sufficient to “raise a right to relief above the 8 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading 9 must contain something more … than … a statement of facts that merely creates a suspicion [of] 10 a legally cognizable right of action.” Id. (citation and quotation marks omitted). At a minimum, a 11 plaintiff should include “enough facts to state a claim to relief that is plausible on its face.” Id. at 12 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 13 A dismissal should not be without leave to amend unless it is clear from the face of the 14 complaint that the action is frivolous and could not be amended to state a federal claim, or the

15 district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 16 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). 17 B. Plaintiff’s Complaint 18 Plaintiff’s complaint names as defendants: Washoe County Sheriff Darrin Balaam, Reno 19 Mayor Hillary Schieve, Governor Lombardo, Lindsay Holland (owner of Inspirational 20 Counseling) and Washoe County Sheriff’s Deputy Simmons. 21 Plaintiff alleges the Defendants accepted bribes to ignore cases that he filed. He also 22 states that he has contacted every level of government for help with an ongoing stalking case, 23 1 only to be met with slander and incarceration on false charges. His complaint includes three 2 claims. 3 The first claim references the Sixth Amendment, and alleges he was forced to enter a 4 guilty plea or face the threat of harm or death. He avers that on March 19, 2025, Judge Jones

5 asked Plaintiff to go into a room with three public defenders: Manuel Murillo, Sydney Hutt, and 6 Jordan Davis. He claims that all of these people were approached by “the ones who stole my 7 inheritance, murdered my life partner, and have stalked me for years.” He states that rather than 8 do their jobs, they took bribes and put Plaintiff in prison. 9 Claim two also references the Sixth Amendment. Plaintiff alleges that Sheriff Balaam, 10 along with many of his officers, including Deputy Simmons, Deputy Medina, Sergeant Garcia, 11 Deputy Bollinger, and all Cold Springs Valley patrol sought to “decimate me, my home and my 12 partner of 31.5 [years]” by ignoring Plaintiff’s report and cries for help. 13 In claim three, Plaintiff alleges that while he was incarcerated at the Washoe County 14 Detention Center, his mail was intentionally sabotaged, and the named Defendants stopped

15 outgoing protection order motions and other legal correspondence related to open cases. 16 Plaintiff fails to state any claim upon which relief may be granted. 42 U.S.C. § 1983 17 provides a mechanism for the private enforcement of substantive rights conferred by the 18 Constitution and federal statutes. Section 1983 “is not itself a source of substantive rights, but 19 merely provides a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 20 510 U.S. 266, 271 (1994) (internal quotation marks and citation omitted). 21 To obtain relief pursuant to section 1983, a plaintiff must establish a “(1) a violation of 22 rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by 23 1 conduct of a ‘person’ (4) acting under color of state law.” Crumpton v. Gates, 947 F.2d 1418, 2 1420 (9th Cir. 1991); West v. Atkins, 487 U.S. 42, 48-49 (1988). 3 To adequately plead the section 1983 elements, a complaint must identify what 4 constitutional right each defendant violated, and provide sufficient facts to plausibly support

5 each violation. See e.g., Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (noting defendants 6 must personally participate in misconduct to be liable under section 1983); see also Hines v. 7 Yousef, 914 F.3d 1218, 1228 (9th Cir. 2019) (defendant must have “personally played a role in 8 violating the Constitution.”). 9 Plaintiff does not provide sufficient facts to plausibly support a claim that his rights were 10 violated under the constitution. First, Plaintiff claims that he was forced to enter into a plea, but 11 he has not named his public defenders as defendants in this action. In any event, a public 12 defender, when acting in role of advocate, is not a State actor for purposes of section 1983. See 13 Georgia v. McCollum, 505 U.S. 42, 53 (1992); Polk County v. Dodson, 454 U.S. 312, 320-25 14 (1981); Jackson v. Brown, 513 F.3d 1057, 1079 (9th Cir. 2008). Moreover, a Sixth Amendment

15 ineffective assistance of counsel claim must be raised in a direct appeal, post-conviction, or 16 habeas proceeding, and not in a section 1983 action. Claims for ineffective assistance of counsel 17 are not recognized under section 1983, despite the statute's "literal applicability" to the Sixth 18 Amendment, because specific appellate and habeas statutes apply. See Nelson v. Campbell, 541 19 U.S. 637, 643 (2004). 20 As such, any Sixth Amendment claim related to the allegation of being forced to enter 21 into a plea agreement should be dismissed. Plaintiff should not be given leave to amend to assert 22 such a claim in this action, but the dismissal should be without prejudice so that he may raise the 23 claim, if appropriate, in a direct appeal, post-conviction or habeas proceeding. 1 Plaintiff’s second claim, that Sheriff Balaam and his officers sought to “decimate” 2 Plaintiff, his home and his partner, does not contain sufficient factual allegations for the court to 3 discern what rights Plaintiff claims were violated, by whom, and how. In an abundance of 4 caution, this claim should be dismissed with leave to amend.

5 In his third claim, Plaintiff does not allege who allegedly sabotaged his mail or when this 6 occurred and how his mail was “sabotaged.” Therefore, his claim that his First Amendment 7 rights were violated when his mail was sabotaged should be dismissed but with leave to amend. 8 Finally, there are no factual allegations at all concerning any of the named defendants. 9 Any amended complaint must include factual allegations of what each defendant did to violate 10 Plaintiff’s rights. 11 III. RECOMMENDATION 12 IT IS HEREBY RECOMMENDED that the District Judge enter an order: 13 (1) GRANTING Plaintiff’s IFP application (ECF No. 1). Plaintiff should not be required 14 to pay, through NDOC, an initial partial filing fee; however, whenever his prison account

15 exceeds $10, he is required to make monthly payments in the amount of 20 percent of the 16 preceding month’s income credited to his account until the full $350 filing fee is paid. 17 This is required even if the action is dismissed, or is otherwise unsuccessful. The Clerk 18 should be directed to SEND a copy of an order adopting and accepting this Report and 19 Recommendation to the attention of Chief of Inmate Services for the Nevada 20 Department of Corrections at formapauperis@doc.nv.gov. 21 (2) The complaint (ECF No. 1-1) should be FILED. 22 (3) The action should be DISMISSED. The Sixth Amendment claim for ineffective 23 assistance of counsel should DISMISSED, WITHOUT LEAVE TO AMEND in this action, 1] but WITHOUT PREJUDICE to be raised, if appropriate in a direct appeal, post-conviction or 2|| habeas proceeding. The remaining claims should be DISMISSED WITH LEAVE TO 3} AMEND. Plaintiff should be given 30 days from the date of any order adopting this Report and Recommendation to file an amended complaint correcting the deficiencies noted above. The amended complaint must be complete in and of itself without referring or incorporating by 6|| reference any previous complaint. Any allegations, parties, or requests for relief from a prior complaint that are not carried forwarded in the amended complaint will no longer be before the 8]| court. Plaintiff shall clearly title the amended pleading as “AMENDED COMPLAINT.” Plaintiff should be cautioned that if he fails to timely file an amended complaint, his action may be dismissed. 11 Plaintiff should be aware of the following: 12 1. That he may file, pursuant to 28 U.S.C. § 636(b)(1)(C), specific written objections to 13]| this Report and Recommendation within fourteen days of being served with a copy of the Report and Recommendation. These objections should be titled “Objections to Magistrate Judge’s Report and Recommendation” and should be accompanied by points and authorities for 16]| consideration by the district judge. Failure to file a timely objection may waive the right to appeal the district court’s order. Martinez v. Yist, 951 F.2d 1153, 1157 (9™ Cir. 1991). 18 2. That this Report and Recommendation is not an appealable order and that any notice of 19]| appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment by the district court. Dated: July 15, 2025

Craig S. Denney 23 United States Magistrate Judge