LaCorte v. Gullo

• Court: District Court, D. Nevada
• Decided: September 2, 2025
• Docket: 2:25-cv-01612
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 BENJAMIN R. LACORTE, Case No. 2:25-cv-01612-RFB-EJY

5 Plaintiff, ORDER 6 v. AND

7 ROBERT GULLO, LISA CHAMLEE REPORT AND RECOMMENDATION

BRAINARD, 8 Defendants. 9 10 Pending before the Court is Plaintiff’s Application to Proceed in forma pauperis and Civil 11 Rights Complaint. ECF Nos. 1, 1-1. The Application is incomplete and on the wrong form. 12 Nonetheless, because the Complaint fails to state a claim under 42 U.S.C. § 1983, efficiency prompts 13 the Court to proceed with the recommendations below. 14 I. Plaintiff’s in forma pauperis Application Is Incomplete And On The Wrong Form. 15 Under United States District Court for the District of Nevada Local Special Rule (“LSR”) 1- 16 1, “[a]ny person who is unable to prepay the fees in a civil case may apply to the court for leave to 17 proceed in forma pauperis. The application must be made on the form provided by the court and 18 must include a financial affidavit disclosing the applicant’s income, assets, expenses, and liabilities.” 19 Under LSR 1-2, “[w]hen submitting an application to proceed in forma pauperis, an incarcerated or 20 institutionalized person must simultaneously submit a certificate from the institution certifying the 21 amount of funds currently held in the applicant’s trust account at the institution and the net deposits 22 in the applicant’s account for the six months before the date of submission of the application. If the 23 applicant has been at the institution for fewer than six months, the certificate must show the account’s 24 activity for this shortened period.” 25 Here, Plaintiff’s Application is not on the Court’s form and he does not provide the certificate 26 required. These errors could ordinarily be remedied; however, the Court finds Plaintiff’s Complaint 27 asserts claims that cannot proceed as stated; hence, no opportunity to correct these defects is 1 II. Plaintiff’s Complaint Fails To State A Claim On Which He Can Proceed. 2 Plaintiff’s first claim for relief alleges he suffered ineffective assistance of counsel in 3 violation of the Sixth Amendment of the United States Constitution. ECF No. 1-1 at 3. U.S. 4 Supreme Court precedent establishes an ineffective assistance of counsel claim must be brought first 5 through a direct appeal and then through a post-conviction habeas corpus petition, not a civil rights 6 action under § 1983 action. Nelson v. Campbell, 541 U.S. 637, 643 (2004); Preiser v. Rodriguez, 7 411 U.S. 475, 477 (1973). Thus, this claim should be dismissed without prejudice to allow Plaintiff 8 to proceed, if he so chooses, with a habeas petition under 28 U.S.C. § 2254. 9 Plaintiff’s second claim alleges a Fourteenth Amendment Equal Protection clause claim 10 against his special public defenders. Court appointed criminal defense attorneys are not state actors. 11 Miranda v. Clark Cnty., Nev., 319 F.3d 465, 466 (9th Cir. 2003) (citing Polk Cnty. v. Dodson, 454 12 U.S. 312 (1981)). Thus, when representing an indigent defendant in a state criminal proceeding, the 13 public defender does not act under color of state law for purposes of § 1983 liability. West v. Atkins, 14 487 U.S. 42 (1988). Stated simply, the public defender is not acting on behalf of the state, but as an 15 adversary of the state. Id. Thus, Plaintiff cannot proceed under 42 U.S.C. § 1983 on his Fourteenth 16 Amendment Equal Protection claim against his special public defenders. 17 III. Order 18 IT IS HEREBY ORDERED that Plaintiff’s Application to Proceed in forma pauperis (ECF 19 No. 1) is DENIED without prejudice to allow Plaintiff to proceed, if he so chooses, with a habeas 20 corpus petition under 28 U.S.C. § 2254. 21 IT IS FURTHER ORDERED that the Clerk of Court must file Plaintiff’s Complaint (ECF 22 No. 1-1) on the docket. 23 IV. Recommendation 24 IT IS HEREBY RECOMMENDED that Plaintiff’s Sixth Amendment ineffective assistance 25 of counsel claim be dismissed without prejudice in its entirety to allow Plaintiff to bring his claim 26 through a habeas corpus petition. 27 IT IS FURTHER RECOMMENDED that Plaintiff’s Fourteenth Amendment Equal 1 IT IS FURTHER RECOMMENDED that if Plaintiff so chooses, he may file a claim alleging 2 ineffective assistance of counsel through a habeas corpus petition under 28 U.S.C. § 2254. 3 Dated this 2nd day of September, 2025. 4

5 ELAYNA J. YOUCHAH 6 UNITED STATES MAGISTRATE JUDGE

7 8 NOTICE 9 Under Local Rule IB 3-2, any objection to this Report and Recommendation must be in 10 writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court holds 11 the courts of appeal may determine that an appeal has been waived due to the failure to file objections 12 within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). The Ninth Circuit also held 13 that (1) failure to file objections within the specified time and (2) failure to properly address and 14 brief the objectionable issues waives the right to appeal the District Court’s order and/or appeal 15 factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 16 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 17 18 19 20 21 22 23 24 25 26 27