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Nevada Federal Court Says Prisoner’s § 1983 Suit Should’ve Been a Habeas Petition, But Returns Filing Fee

by David M. Reutter

Giving a break to the prisoner who filed a civil rights suit she dismissed on July 8, 2022, Judge Anne R. Traum of the federal court for the District of Nevada ordered return of the plaintiff’s $402 filing fee.

The prisoner, Rafael Bernardo Alvarez, filed a complaint pro se in the Court under 42 U.S.C. § 1983, accusing Clark County and Sheriff Joe Lombardo, as well as state Child Protective Services and the Las Vegas Metropolitan Police Department (LVMPD) and their employees, of violating his civil rights with a wrongful conviction and imprisonment.

A magistrate judge recommended dismissing most of Alvarez’s claims on February 17, 2022. Those “attacking the validity of his conviction,” the magistrate said, should “be dismissed without prejudice so that Plaintiff may refile for relief through a habeas petition.” Dismissal was also recommended for Alvarez’s Fourth Amendment claim — that a LVMPD detective committed perjury by covering up exculpatory evidence — with leave to refile in a brief meeting the Court’s page limit. See: Alvarez v. Clark Cty., 2022 U.S. Dist. LEXIS 28707 (D. Nev.).

The Court then adopted the magistrate’s report and recommendation in full on May 10, 2022. Alvarez was also warned that before proceeding, he must pay the $402 filing fee or submit a qualifying application to proceed in forma pauperis. See: Alvarez v. Clark Cty., 2022 U.S. Dist. LEXIS 85005 (D. Nev.).

Alvarez returned to the Court and paid the fee, only to admit that the entirety of his action was in substance a petition for a writ of habeas corpus; and, since favorable adjudication of his civil rights claims would necessarily affect his conviction, they were barred by Heck v. Humphrey, 512 U.S. 477 (1994). He therefore asked the Court to withdraw his action and return the “$402 filing fee applicable to civil rights actions because he needs that money to survive.”

The Court found this was appropriate. Had he known his action should properly be filed under habeas corpus, Alvarez would have paid just a $5 filing fee, Judge Traum noted, not $402. Moreover, even were Alvarez to proceed under § 1983 on his Fourth Amendment claim, it was “insufficiently coherent for the Court to assess the merits.” Therefore Alvarez’s motion was granted and the case dismissed without prejudice. The Court Clerk was also ordered to refund the $402 filing fee. See: Alvarez v. Clark County, 2022 U.S. Dist. LEXIS 121579 (D. Nev.). 

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