Centeno v. Lombardo

[1] 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 Gerold Esparza Centeno, Case No.: 2:23-cv-01938-JAD-NJK 5 Plaintiff 6 v. Order Screening Amended Complaint and 7 Joe Lombardo, et al., Dismissing it with Leave to Amend by August 30, 2024, and Order Denying 8 Defendants Motion for Preliminary Injunction 9 [ECF Nos. 4, 7] [10] 11 Pro se plaintiff and Nevada inmate Gerold Esparza Centeno brings this civil-rights action 12 under 42 U.S.C. § 1983 , claiming that his rights were violated when the sheriff, the district 13 attorney, his defense lawyer, and the judges in his state-court criminal prosecution allowed him 14 to plead guilty to a crime that they knew he did not commit. Centeno’s first amended complaint 15 (“FAC”) is the operative one,1 but all of his claims appear to be barred by the United States 16 Supreme Court’s opinion in Heck v. Humphrey,2 which holds that an inmate can’t challenge the 17 fact of his confinement with a § 1983 lawsuit unless his conviction or sentence has been 18 reversed, invalidated, expunged, or called into question by a federal court’s issuance of a writ of 19 habeas corpus. So having screened Centeno’s FAC, I dismiss it in its entirety, but I give him 20 until August 30, 2024, to file a second amended complaint if he can state a claim that is not Heck 21 barred. [22] 23 1 ECF No. 4. 2 Heck v. Humphrey, 512 U.S. 477 (1994). 1 Background 2 A. Centeno’s factual allegations3 3 Centeno alleges that he was charged with several different sexual offenses in the and 4 threatened with serving life in prison.4 The defendants—former Sheriff (and now Governor) Joe 5 Lombardo; District Attorney Steve Wolfson; Eighth Judicial District Court Judges Stephanie 6 Miley and Michelle Leavitt; Psychologist L.A. Dils; and defense attorney Kenneth G. Frizzell 7 III, his law firm, and his investigator “Mr. Rowles”—conspired to allow Centeno to plead guilty 8 to attempted sexual assault and attempted lewdness, even though that was in direct conflict with 9 the witness statement and physical evidence. He theorizes that the defendants knew that he was 10 not guilty of an attempt crime because an attempt crime requires that the crime was attempted 11 but that the attempt failed. Centeno appears to argue that the defendants had indisputable 12 evidence that the sexual assault occurred, and therefore the defendants should not have allowed 13 him to plead guilty to an attempt.5 14 Centeno separately alleges that the original criminal case was sealed and a second 15 criminal case opened in order to conceal that Centeno’s uncle was a suspect.6 Defendant Frizzell 16 was Centeno’s defense counsel, but Centeno alleges that Frizzell withheld exculpatory evidence 17 in order to send Centeno to prison for a crime that he did not commit.7 For his part, defendant 18 Lombardo, who was the sheriff at the time, instructed detectives to ignore other suspects; District 19 Attorney Wolfson sealed case records and filed ex parte motions to obtain Centeno’s medical [20] 21 3 This is just a brief summary of the plaintiff’s allegations and not intended as findings of fact. 4 ECF No. 4 at 4. [5] Id. at 4–5. 23 6 Id. at 6. 7 Id. at 7. 1 records and then seal them;8 and psychologist L.A. Dils issued a psychosexual evaluation that 2 falsely stated that Centeno told her that, if he were released, he would “do it again.” That was a 3 lie, and it was written only to prejudice the judge. 4 B. Plaintiff’s causes of action 5 Based on these events, Centeno brings a due-process claim, an equal-protection claim, 6 and a claim of cruel and unusual punishment.9 He seeks damages, a release from custody, and to 7 have his pending state-court prosecution vacated.10 8 Discussion 9 A. Screening standard 10 Federal courts must conduct a preliminary screening in any case in which a prisoner 11 seeks redress from a governmental entity or an officer or employee of a governmental entity.11 12 In its review, the court must identify any cognizable claims and dismiss any claims that are 13 frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary 14 relief from a defendant who is immune from such relief.12 All or part of the complaint may be 15 dismissed sua sponte if the prisoner’s claims lack an arguable basis in law or fact. This includes 16 claims based on legal conclusions that are untenable, like claims against defendants who are [19] 8 Although the FAC is not entirely clear, I construe it as alleging (1) that Centeno did not commit 20 any crime at all but that somebody committed a sexual assault and (2) various defendants withheld exculpatory evidence and allowed Centeno to plead guilty to an attempted sexual 21 assault even though they knew that he could not be guilty of an attempted sexual assault. 9 Id. at 4–7. [22] 10 Id. at 8. 23 11 See 28 U.S.C. § 1915A(a). 12 See 28 U.S.C. § 1915A(b)(1)(2). 1 immune from suit or claims of infringement of a legal interest which clearly does not exist, as 2 well as claims based on fanciful factual allegations or fantastic or delusional scenarios.13 3 Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot 4 prove any set of facts in support of the claim that would entitle him or her to relief.14 In making 5 this determination, the court takes all allegations of material fact as true and construes them in 6 the light most favorable to the plaintiff.15 Allegations of a pro se complainant are held to less 7 stringent standards than formal pleadings drafted by lawyers,16 but a plaintiff must provide more 8 than mere labels and conclusions.17 “While legal conclusions can provide the framework of a 9 complaint, they must be supported with factual allegations.”18 “Determining whether a 10 complaint states a plausible claim for relief . . . [is] a context-specific task that requires the 11 reviewing court to draw on its judicial experience and common sense.”19 12 B. Centeno cannot challenge his state-court conviction with a § 1983 lawsuit. 13 The law is clear that a prisoner in state custody cannot use a § 1983 action to challenge 14 “the fact or duration of his confinement”; he must instead seek federal habeas corpus relief or 15 other appropriate state-court relief. So, in Heck v. Humphrey, the Supreme Court held that “in 16 order to recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for [18] 13 See Neitzke v. Williams, 490 U.S. 319 , 327–28 (1989); see also McKeever v. Block, 932 F.2d 19 795, 798 (9th Cir. 1991). 14 See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). [20] 15 See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). 21 16 Hughes v. Rowe, 449 U.S. 5, 9 (1980); see also Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (recognizing that pro se pleadings must be liberally construed). [22] 17 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 23 18 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). [19] Id. 1 other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, 2 a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, 3 expunged by executive order, declared invalid by a state tribunal authorized to make such 4 determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 5 U.S.C. § 2254 .”20 “A claim for damages bearing that relationship to a conviction or sentence 6 that has not been . . . invalidated is not cognizable under § 1983.”21 “Thus, when a state prisoner 7 seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of 8 the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the 9 complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence 10 has already been invalidated.”22 11 Centeno appears to allege that the defendants violated his rights by allowing him to plead 12 guilty to a crime that they knew he did not commit and by hiding exculpatory evidence, which 13 would render his resulting conviction invalid. Centeno also alleges that his presentence14 investigation report was deliberately falsified to prejudice the judge against him, which would 15 also potentially invalidate his sentence. Thus, all of Centeno’s claims appear to necessarily 16 imply the invalidity of either his conviction or his sentence, triggering Heck. 17 Because Centeno’s money-damages claims implicate Heck, he must plead facts showing 18 that a court has already overturned his conviction or sentence. His first amended complaint lacks 19 such allegations, so I dismiss his claims as Heck-barred. To the extent that Centeno requests that 20 his criminal conviction be vacated and that he be released from custody, he must seek that relief [22] 20 Heck, 512 U.S. 486–87. 23 21 Id. at 487. 22 Id. 1 by filing a proper habeas corpus petition; such relief is not available through this civil-rights 2 lawsuit. [3] C. Centeno has until August 30, 2024, to file a second amended complaint if he can 4 overcome the Heck bar. 5 It does not appear that Centeno can plead true facts showing that his sentence or 6 conviction has been overturned so that he can get past this Heck bar. Centeno is currently 7 pursing habeas relief in federal court, and according to a document that he filed on May 14, 8 2024, all his appeals and habeas corpus petitions in state court have been unsuccessful.23 But in 9 light of Centeno’s pro se status, and because it is not entirely clear what claims Centeno is trying 10 to bring, I grant him one last chance to state a cognizable claim. 11 Should he take this opportunity to file a second amended complaint, Centeno must either 12 allege facts clearly demonstrating that his conviction or sentence have already been overturned, 13 or he must clearly explain what claims he is bringing that do not implicate the validity of his 14 conviction or sentence. He is also advised that a second amended complaint replaces the FAC, 15 so the second amended complaint must be complete in itself.24 Centeno must file the second 16 amended complaint on this court’s approved prisoner-civil-rights form, and it must be entitled 17 “Second Amended Complaint.” Centeno must follow the instructions on the form. He need not 18 and should not allege very many facts in the “nature of the case” section of the form. Rather, in [20] 23 Centeno v. Bean, Case No. 2:23-cv-02130-APG-EJY at ECF No. 10. I take judicial notice of 21 the court’s records in that case. 24 See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 22 1989) (holding that “[t]he fact that a party was named in the original complaint is irrelevant; an amended pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896 , 23 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims in a subsequent amended complaint to preserve them for appeal). 1 each count, he should allege facts sufficient to show what each defendant did to violate his civil 2 rights. He must file the second amended complaint by August 30, 2024. 3 D. Centeno is not entitled to injunctive relief. 4 Centeno has also filed a motion for a preliminary injunction.25 In it, he alleges that he 5 continues to be illegally held. He states that he has court orders vacating his sentence and 6 release, but the defendants continue to conspire to illegally hold him. He states that his motion 7 to be brought to court on January 4, 2024, to be released suddenly disappeared and that his 8 motion to vacate his illegal sentence was illegally altered and classified as a rogue motion. 9 Injunctive relief, whether temporary or permanent, is an “extraordinary remedy, never 10 awarded as of right.”26 “A plaintiff seeking a preliminary injunction must establish that he is 11 likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 12 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the 13 public interest.”27 14 To the extent that Centeno is seeking release from prison, he can’t get that relief through 15 this case—he has to seek it through a habeas corpus petition in state or federal court. Even if that 16 relief were available, it appears that it is unwarranted. Although Centeno suggests in his motion 17 that he has a court order to vacate his sentence and release him, he also acknowledges in his 18 federal habeas case that all his appeals and state habeas corpus actions have been denied. But the 19 most compelling reason that his request for injunctive relief must be denied is that Centeno has [22] 25 ECF No. 7. 26 Winter v. Natural Res. Defense Council, 555 U.S. 7, 24 (2008). [23] 27 Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20 ). yet pled a viable claim, so he cannot demonstrate a likelihood of success on the merits of any cause of action. Centeno’s motion for a preliminary injunction is therefore denied. 3 Conclusion 4 IT IS THEREFORE ORDERED that the first amended complaint (ECF No. 4) is the 5] operative complaint in this case, and it is dismissed in its entirety, without prejudice and 6|| with leave to amend by August 30, 2024.78 7 The Clerk of the Court is directed to SEND plaintiff the approved form for filing a 8] § 1983 prisoner complaint, instructions for the same, and a copy of his first amended complaint (ECF No. 4). If Centeno chooses to file a second amended complaint, he must use the 10|| approved form and he must write the words “Second Amended” above the words “Civil Rights Complaint” in the caption, and he must file that second amended complaint by August 30, 2024, or this case will be dismissed with prejudice and closed without further prior 13]| notice. 14 IT IS FURTHER ORDERED that plaintiffs motion for a preliminary injunction (ECF 15|| No. 7) is DENIED. 16 Dated: July 30, 2024 USS. Districhudge Jen Fe A. Dorsey [22] 23 28 The court is aware that Centeno’s application to proceed in forma pauperis remains pending. See ECF No. 18.