-DAD (PC) Gutierrez v. 5th Appeal Court, No. 2:2011cv01062 - Document 23 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/03/11 ORDERING the Clerk of the court shall randomly assign a District Judge to this action. U.S. District Judge John A. Mendez randomly assigned to this action. Also, RECOMMENDING that plaintiff's motion to proceed in forma pauperis 17 be denied. Plaintiff's motion for a 30 day extension of time to file an in forma pauperis application 18 be denied as moot; and this action be dismissed without prejudice. Motion to proceed in forma pauperis 17 and Motion for 30-day extension of time 18 referred to Judge John A. Mendez. Objections due within 21 days. (Plummer, M)
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-DAD (PC) Gutierrez v. 5th Appeal Court Doc. 23 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MARIO GUTIERREZ, 11 Plaintiff, 12 No. CIV S-11-1062 DAD P vs. 13 FIFTH APPEAL COURT, 14 Defendant. 15 ORDER AND FINDINGS AND RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 17 U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. 18 This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 19 302 and 28 U.S.C. § 636(b)(1). 20 21 SCREENING REQUIREMENT The court is required to screen complaints brought by prisoners seeking relief 22 against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. 23 § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised 24 claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 25 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 26 U.S.C. § 1915A(b)(1) & (2). 1 Dockets.Justia.com 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 3 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 6 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 7 Cir. 1989); Franklin, 745 F.2d at 1227. 8 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and 9 plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 10 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 11 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 12 (1957)). However, in order to survive dismissal for failure to state a claim a complaint must 13 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 14 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 15 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 16 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 17 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 18 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 19 The Civil Rights Act under which this action was filed provides as follows: 20 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 21 22 23 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 24 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 25 Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 26 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 2 1 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 2 omits to perform an act which he is legally required to do that causes the deprivation of which 3 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 4 Moreover, supervisory personnel are generally not liable under § 1983 for the 5 actions of their employees under a theory of respondeat superior and, therefore, when a named 6 defendant holds a supervisorial position, the causal link between him and the claimed 7 constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 8 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory 9 allegations concerning the involvement of official personnel in civil rights violations are not 10 sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 11 PLAINTIFF’S COMPLAINT 12 In the present case, plaintiff has filed a form complaint as well as several letters 13 with the court. In his complaint, plaintiff has identified the “5th Appeal Court” as the sole 14 defendant in this civil rights action. Plaintiff’s complaint and letters are difficult to decipher. 15 However, plaintiff appears to be attempting to allege that, in 1998, he was convicted of assault 16 with a deadly weapon other than a firearm. According to plaintiff, the deputy district attorney 17 wanted him sentenced to 16 years in state prison and that a strike be found based on a juvenile 18 conviction of some sort, but that plaintiff’s attorney informed the deputy district attorney that the 19 California Court of Appeal had dismissed plaintiff’s juvenile case. Ultimately, according to 20 plaintiff, the deputy district attorney agreed to a sentence of seven years without a strike. 21 According to plaintiff, the California Court of Appeal has failed to correct its records because his 22 juvenile case and the strike associated with it continue to appear in the district attorney’s 23 computer system. Plaintiff alleges that this error has resulted in the imposition of his current 24 three-strikes sentence of twenty-five years to life in state prison. In terms of relief, plaintiff seeks 25 monetary damages. (Compl. at 5, 8 & Attachs., Pl.’s Letters.) 26 ///// 3 1 2 DISCUSSION A civil rights action is the proper mechanism for a prisoner seeking to challenge 3 the conditions of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). In contrast, 4 habeas corpus proceedings are the proper mechanism for a prisoner seeking to challenge the fact 5 or duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Here, plaintiff 6 claims that the state appellate court’s conduct resulted in him being sentenced to twenty-five 7 years to life in state prison. However, even if the state appellate court was a proper defendant in 8 this civil rights action, which it is not, plaintiff has not alleged that his current conviction or 9 sentence has been overturned or otherwise invalidated. 10 Under these circumstances, the court cannot allow plaintiff to proceed in this civil 11 rights action. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“a state prisoner’s § 1983 12 action is barred (absent prior invalidation) - no matter the relief sought (damages or equitable 13 relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal 14 prison proceedings) - if success in that action would necessarily demonstrate the invalidity of 15 confinement or its duration.”) (emphasis in original); Heck v. Humphrey, 512 U.S. 477 (1994) (a 16 state prisoner may not recover damages under § 1983 for allegedly unconstitutional 17 imprisonment, or for any other harm caused by “actions whose unlawfulness would render the 18 imprisonment invalid,” unless he can prove that the conviction or other basis for confinement has 19 been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal 20 authorized to make such a determination, or called into question by a federal court’s issuance of a 21 writ of habeas corpus). Although the allegations of plaintiff’s complaint are vague and 22 conclusory, the court finds that those allegations necessarily implicate the validity of plaintiff’s 23 current confinement. Plaintiff is advised that a writ of habeas corpus is his sole remedy by which 24 to attack in federal court his state court criminal conviction and sentence, and that remedy may be 25 pursued only after he has properly exhausted all of his constitutional claims by properly 26 presenting them to the highest state court. 4 1 CONCLUSION 2 3 IT IS HEREBY ORDERED that the Clerk of the Court is directed to randomly assign a United States District Judge to this action. 4 For the reasons set forth above, IT IS HEREBY RECOMMENDED that: 5 1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 17) be denied; 6 2. Plaintiff’s motion for a thirty-day extension of time to file an in forma pauperis 7 application (Doc. No. 18) be denied as moot; and 8 3. This action be dismissed without prejudice. 9 These findings and recommendations are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 11 one days after being served with these findings and recommendations, plaintiff may file written 12 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 13 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 14 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 15 F.2d 1153 (9th Cir. 1991). 16 DATED: October 3, 2011. 17 18 19 DAD:9 guti1062.56 20 21 22 23 24 25 26 5
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