1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 JESSE L. LUCIO, Case No. 2:22-cv-01088-CDS-EJY
5 Plaintiff, ORDER 6 v. and 7 STATE OF NEVADA, et al., REPORT AND RECOMMENDATION 8 Defendants.
9 10 Pending before the Court is Plaintiff Jesse L. Lucio’s application to proceed in forma 11 pauperis (“IFP”) and Petition to Challenge Senate Bill No. 182. ECF Nos. 1, 1-1. A review of these 12 documents shows Lucio’s application to proceed IFP will be denied as moot and his Petition should 13 be dismissed with prejudice. 14 I. Legal Standard 15 The court must review a pro se prisoner filing to determine whether the complaint is 16 frivolous, malicious, fails to state a claim upon which the court may grant relief, or if the complaint 17 seeks damages against a defendant who is immune from that relief. 28 U.S.C. § 1915(e)(2)(B). In 18 addition, under Federal Rule of Civil Procedure 8(a) a complaint must contain in “a short and plain 19 statement … showing that the [plaintiff] is entitled to relief.” The Supreme Court’s decision in 20 Ashcroft v. Iqbal states that to satisfy Rule 8’s requirements, a complaint’s allegations must cross 21 “the line from conceivable to plausible.” 556 U.S. 662, 680 (2009) (quoting Bell Atlantic Corp. v. 22 Twombly, 550 U.S. 544, 547, (2007)). 23 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal based on failure 24 to state a claim upon which relief may be granted. A complaint should be dismissed under Rule 25 12(b)(6) “if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his 26 claims that would entitle him to relief.” Buckey v. Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). 27 “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than 1 v. Gamble, 429 U.S. 97, 106 (1976)). Prior to entering a pre-filing order, the court must give the 2 litigant notice and an opportunity to be heard. De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 3 1990). The court must set forth an adequate record for review and make “substantive findings about 4 the frivolous or harassing nature of the plaintiff’s litigation.” Id. 5 II. Discussion 6 Lucio, currently incarcerated in the Nevada Department of Corrections, filed his Petition to 7 Challenge Senate Bill No. 182 naming the State of Nevada as Defendant. ECF 1-1 at 1. He alleges 8 that “Senate Bill No. 182” created the Statute Revision Commission (the “Commission”) in 1951, 9 which was unconstitutional.1 Id. Lucio asserts that his constitutional rights were violated when the 10 Commission violated procedural due process, substantive due process, the judicial code of conduct, 11 and the Equal Protection Clause of the Fourteenth Amendments. Id. Lucio seeks (1) to vacate his 12 sentence, (2) have Senate Bill No. 182 removed so that it has no more effect on anyone, (3) remove 13 any work derived from SB 182, and (4) pay at the “prevailing wage for every hour” he worked during 14 the 14 1/2 years he has been incarcerated. ECF 1-1 at 10. 15 a. Lucio’s Petition Must be Brought Through a Habeas Petition. 16 As stated, Lucio requests that his sentence be vacated. Id. Lucio cannot bring this claim 17 under 42 U.S.C. § 1983. In order to obtain this relief, Lucio must prove that his conviction or 18 sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state 19 tribunal or called into question by a federal court’s issuance of a writ of habeas corpus. Heck v. 20 Humphrey, 512 U.S. 477, 486-487 (1994). Lucio’s assertion that his conviction should be vacated 21 because of the alleged unconstitutional creation of the Commission codified by Senate Bill No. 182 22 is improperly brought under § 1983. Stated simply, Lucio cannot challenge “the fact or duration of 23 his confinement” in a § 1983 claim. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). Lucio must file 24 a habeas corpus petition and a new IFP application. Lucio may not file a petition for habeas corpus 25 in this action.
1 Senate Bill No. 182 was enacted by the 45th Session of the Legislature of the State of Nevada of chapter 304, 27 Statutes of Nevada 1951 (subsequently amended by chapter 280, Statutes of Nevada 1953 and chapter 248, Statutes of 1 b. Lucio Fails to State a Claim Arising From the Creation of the Statute Revision Commission. 2 3 Lucio asserts that the Commission is unconstitutional because three Nevada Supreme Court 4 Justices were improperly delegated legislative powers. ECF 1-1 at 1-4. Including the case at bar, at 5 least nine different actions regarding the constitutionality of the Commission have been filed in this 6 District.2 7 The Supreme Court of Nevada recently addressed a similar issue. State v. Taylor, 472 P.3d 8 195 (Nev. 2020). In Taylor, the court held that the Justices sitting on the Commission did not violate 9 a constitutional provision because “the Legislative Counsel Bureau – which succeeded the statute 10 revision commission – codifies and classifies” laws “in a logical order, but not itself exercising the 11 legislative function.” Id. at 5. The Nevada Supreme Court further held that the district court did not 12 err in denying Taylor’s claim because she failed to show how the Commission “encroached upon 13 the powers of another branch of government, violating the separation of powers.” Id. See Comm’n 14 on Ethics v. Hardy, 125, Nev. 285, 291-92, 212 P.3d 1098, 1103 (2009) (“The purpose of the 15 separation of powers doctrine is to prevent one branch of government from encroaching on the 16 powers of another branch.”). 17 Lucio’s claim is similarly deficient. He repeatedly asserts that the creation of the 18 Commission was unconstitutional solely because the three Nevada State Supreme Court Justices 19 were a part of this Commission. Lucio fails to show how the Commission unconstitutionally 20 encroached upon another branch of government and violated the separation of powers doctrine. To 21 properly state a claim Lucio must allege facts facially demonstrating how Justices Merrill, Badt, and 22 Eather “violated the constitution by serving in a nonjudicial public office” and “improperly 23 encroached” on the powers of another branch of government such that separation of powers was 24 violated. Taylor, 472 P.3d 195 at 5. Given that there is a 71 year gap between the Commission’s 25 creation and Plaintiff’s Petition, the Court finds Plaintiff will not be able to do so.
26 2 Anderson v. State of Nevada, Case No. 2:22-cv-00734-GMN-VCF; Willing v. State of Nevada, Case No. 2:22- cv-00795-CDS-VCF; Perez v. State of Nevada, Case No. 2:22-cv-00796-GMN-DJA; Willing v. State of Nevada, Case 27 No. 2:22-cv-00733-APG-DJA; Jones v. State of Nevada, Case No. 2:22-cv-00935-ART-NBW; Jackson v. State of ] c. Lucio’s IFP Application is Denied as Moot. 2 Under 28 U.S.C.
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 JESSE L. LUCIO, Case No. 2:22-cv-01088-CDS-EJY
5 Plaintiff, ORDER 6 v. and 7 STATE OF NEVADA, et al., REPORT AND RECOMMENDATION 8 Defendants.
9 10 Pending before the Court is Plaintiff Jesse L. Lucio’s application to proceed in forma 11 pauperis (“IFP”) and Petition to Challenge Senate Bill No. 182. ECF Nos. 1, 1-1. A review of these 12 documents shows Lucio’s application to proceed IFP will be denied as moot and his Petition should 13 be dismissed with prejudice. 14 I. Legal Standard 15 The court must review a pro se prisoner filing to determine whether the complaint is 16 frivolous, malicious, fails to state a claim upon which the court may grant relief, or if the complaint 17 seeks damages against a defendant who is immune from that relief. 28 U.S.C. § 1915(e)(2)(B). In 18 addition, under Federal Rule of Civil Procedure 8(a) a complaint must contain in “a short and plain 19 statement … showing that the [plaintiff] is entitled to relief.” The Supreme Court’s decision in 20 Ashcroft v. Iqbal states that to satisfy Rule 8’s requirements, a complaint’s allegations must cross 21 “the line from conceivable to plausible.” 556 U.S. 662, 680 (2009) (quoting Bell Atlantic Corp. v. 22 Twombly, 550 U.S. 544, 547, (2007)). 23 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal based on failure 24 to state a claim upon which relief may be granted. A complaint should be dismissed under Rule 25 12(b)(6) “if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his 26 claims that would entitle him to relief.” Buckey v. Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992). 27 “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than 1 v. Gamble, 429 U.S. 97, 106 (1976)). Prior to entering a pre-filing order, the court must give the 2 litigant notice and an opportunity to be heard. De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 3 1990). The court must set forth an adequate record for review and make “substantive findings about 4 the frivolous or harassing nature of the plaintiff’s litigation.” Id. 5 II. Discussion 6 Lucio, currently incarcerated in the Nevada Department of Corrections, filed his Petition to 7 Challenge Senate Bill No. 182 naming the State of Nevada as Defendant. ECF 1-1 at 1. He alleges 8 that “Senate Bill No. 182” created the Statute Revision Commission (the “Commission”) in 1951, 9 which was unconstitutional.1 Id. Lucio asserts that his constitutional rights were violated when the 10 Commission violated procedural due process, substantive due process, the judicial code of conduct, 11 and the Equal Protection Clause of the Fourteenth Amendments. Id. Lucio seeks (1) to vacate his 12 sentence, (2) have Senate Bill No. 182 removed so that it has no more effect on anyone, (3) remove 13 any work derived from SB 182, and (4) pay at the “prevailing wage for every hour” he worked during 14 the 14 1/2 years he has been incarcerated. ECF 1-1 at 10. 15 a. Lucio’s Petition Must be Brought Through a Habeas Petition. 16 As stated, Lucio requests that his sentence be vacated. Id. Lucio cannot bring this claim 17 under 42 U.S.C. § 1983. In order to obtain this relief, Lucio must prove that his conviction or 18 sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state 19 tribunal or called into question by a federal court’s issuance of a writ of habeas corpus. Heck v. 20 Humphrey, 512 U.S. 477, 486-487 (1994). Lucio’s assertion that his conviction should be vacated 21 because of the alleged unconstitutional creation of the Commission codified by Senate Bill No. 182 22 is improperly brought under § 1983. Stated simply, Lucio cannot challenge “the fact or duration of 23 his confinement” in a § 1983 claim. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). Lucio must file 24 a habeas corpus petition and a new IFP application. Lucio may not file a petition for habeas corpus 25 in this action.
1 Senate Bill No. 182 was enacted by the 45th Session of the Legislature of the State of Nevada of chapter 304, 27 Statutes of Nevada 1951 (subsequently amended by chapter 280, Statutes of Nevada 1953 and chapter 248, Statutes of 1 b. Lucio Fails to State a Claim Arising From the Creation of the Statute Revision Commission. 2 3 Lucio asserts that the Commission is unconstitutional because three Nevada Supreme Court 4 Justices were improperly delegated legislative powers. ECF 1-1 at 1-4. Including the case at bar, at 5 least nine different actions regarding the constitutionality of the Commission have been filed in this 6 District.2 7 The Supreme Court of Nevada recently addressed a similar issue. State v. Taylor, 472 P.3d 8 195 (Nev. 2020). In Taylor, the court held that the Justices sitting on the Commission did not violate 9 a constitutional provision because “the Legislative Counsel Bureau – which succeeded the statute 10 revision commission – codifies and classifies” laws “in a logical order, but not itself exercising the 11 legislative function.” Id. at 5. The Nevada Supreme Court further held that the district court did not 12 err in denying Taylor’s claim because she failed to show how the Commission “encroached upon 13 the powers of another branch of government, violating the separation of powers.” Id. See Comm’n 14 on Ethics v. Hardy, 125, Nev. 285, 291-92, 212 P.3d 1098, 1103 (2009) (“The purpose of the 15 separation of powers doctrine is to prevent one branch of government from encroaching on the 16 powers of another branch.”). 17 Lucio’s claim is similarly deficient. He repeatedly asserts that the creation of the 18 Commission was unconstitutional solely because the three Nevada State Supreme Court Justices 19 were a part of this Commission. Lucio fails to show how the Commission unconstitutionally 20 encroached upon another branch of government and violated the separation of powers doctrine. To 21 properly state a claim Lucio must allege facts facially demonstrating how Justices Merrill, Badt, and 22 Eather “violated the constitution by serving in a nonjudicial public office” and “improperly 23 encroached” on the powers of another branch of government such that separation of powers was 24 violated. Taylor, 472 P.3d 195 at 5. Given that there is a 71 year gap between the Commission’s 25 creation and Plaintiff’s Petition, the Court finds Plaintiff will not be able to do so.
26 2 Anderson v. State of Nevada, Case No. 2:22-cv-00734-GMN-VCF; Willing v. State of Nevada, Case No. 2:22- cv-00795-CDS-VCF; Perez v. State of Nevada, Case No. 2:22-cv-00796-GMN-DJA; Willing v. State of Nevada, Case 27 No. 2:22-cv-00733-APG-DJA; Jones v. State of Nevada, Case No. 2:22-cv-00935-ART-NBW; Jackson v. State of ] c. Lucio’s IFP Application is Denied as Moot. 2 Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a civil action “without prepayment 3 || fees or security thereof” if the plaintiff submits a financial affidavit that demonstrates the plainti 4 || “is unable to pay such fees or give security therefor.” If the plaintiff is a “prisoner” as defined | 5 || 28 U.S.C. § 1915(h), as amended by the Prison Litigation Reform Act (““PLRA”), he remai 6 || obligated to pay the entire fee in installments, regardless of whether his action is ultimate 7 || dismissed. 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002 8 || Under the PLRA, a prisoner seeking leave to proceed IFP must submit a “certified copy of the tru 9 || fund account statement (or institutional equivalent) for the prisoner for the six-month □□□□ 10 || immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 3° 11 |} F.3d 1113, 1119 (9th Cir. 2005). Here, Lucio submitted all the necessary documentation to file « 12 || IFP. However, since the undersigned recommends dismissal of Lucio’s Petition, his IFP applicatic 13 |} is moot. II. Order 15 IT IS HEREBY ORDERED that Plaintiff's application to proceed in forma pauperis (EC 16 |} No. 1) is DENIED as moot. 17 || IV. Recommendation 18 IT IS HEREBY RECOMMENDED that Plaintiff's Petition to Challenge Senate Bill 1° 19 || (ECF No. 1-1) be dismissed with prejudice. 20 21 Dated this 14th day of July, 2022. 22 23 . ELAYNAY. YOU: 24 AYN, 1700 ha mn JUDGE 25 26 27 28