-CMK (PS) Morales v. Hammonds, No. 2:2011cv02581 - Document 11 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 11/14/11 RECOMMENDING that this action be dismissed. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)

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-CMK (PS) Morales v. Hammonds Doc. 11 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN LEE MORALES, 12 13 14 No. CIV S-11-2581-KJM-CMK Plaintiff, vs. FINDINGS AND RECOMMENDATIONS ROBERT HAMMONDS, JR., 15 Defendant. 16 / 17 Plaintiff, who is proceeding pro se, brings this civil action. Pending before the 18 court is plaintiff’s complaint (Doc. 1).1 The court is required to screen complaints brought by 19 prisoners seeking relief against a governmental entity or officer or employee of a governmental 20 entity. See 28 U.S.C. § 1915A(a). The court is also required to screen complaints brought by 21 litigants who have been granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). 22 Under these screening provisions, the court must dismiss a complaint or portion thereof if it: (1) 23 is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks 24 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§ 25 1 26 Plaintiff’s complaint submitted to this court is a California form complaint for personal injury. 1 Dockets.Justia.com 1 1915(e)(2)(A), (B) and 1915A(b)(1), (2). Moreover, pursuant to Federal Rule of Civil Procedure 2 12(h), this court must dismiss an action “[w]henever it appears . . . that the court lacks 3 jurisdiction of the subject matter . . . .” Because plaintiff, who is not a prisoner, has been granted 4 leave to proceed in forma pauperis, the court will screen the complaint pursuant to § 1915(e)(2). 5 Pursuant to Rule 12(h), the court will also consider as a threshold matter whether it has subject- 6 matter jurisdiction. 7 Plaintiff names Robert Hammonds, Jr., Esq., as the only defendant. Plaintiff 8 states that Mr. Hammonds has been appointed to represent him, apparently in the context of an 9 ongoing state criminal proceeding. According to plaintiff, Mr. Hammonds has not contacted him 10 to discuss the case. He also claims that Mr. Hammonds has failed to file critical motions in his 11 case. Plaintiff claims that defendant’s negligence has resulted in the denial of his constitutional 12 right to effective assistance of counsel. 13 Principles of comity and federalism require that this court abstain and not 14 entertain petitioner's pre-conviction challenge unless he shows that: (1) he has exhausted 15 available state judicial remedies, and (2) “special circumstances” warrant federal intervention. 16 See Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir.1980). Only in cases of proven harassment 17 or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid 18 conviction and perhaps in other special circumstances where irreparable injury can be shown is 19 federal injunctive relief against pending state prosecutions appropriate. See id. at 84 (citing 20 Perez v. Ledesma, 401 U.S. 82, 85 (1971)). In the current case, plaintiff makes no such showing 21 of “special circumstances” warranting federal intervention before the trial is held and any appeal 22 is completed. See id. Plaintiff’s remedies, if any, at this stage in the state court criminal 23 proceedings lie in the state court (i.e., a motion for appointment of new counsel). 24 /// 25 /// 26 /// 2 1 2 Based on the foregoing, the undersigned recommends that this action be dismissed. 3 These findings and recommendations are submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 5 after being served with these findings and recommendations, any party may file written 6 objections with the court. Responses to objections shall be filed within 14 days after service of 7 objections. Failure to file objections within the specified time may waive the right to appeal. 8 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 10 11 12 DATED: November 14, 2011 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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