Polk v. Daly et al
Filing
15
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Phyllis J. Hamilton on 8/24/12. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 8/24/2012)
1
2
3
UNITED STATES DISTRICT COURT
4
NORTHERN DISTRICT OF CALIFORNIA
5
OAKLAND DIVISION
6
7
SUSAN MAE POLK,
vs.
9
11
For the Northern District of California
United States District Court
10
12
13
14
15
16
17
18
19
20
21
22
No. C 12-0193 PJH (PR)
Plaintiff,
8
LINDA DALY, Fiscal Officer, Contra Costa
County; SILVANO MARCHESI, Counsel,
Contra Costa County; SHARON
ANDERSON, Counsel, Contra Costa County;
WARREN RUPF, Sheriff, Contra Costa
County; ROBERT CAMPBELL, Auditor
Controller, Contra Costa County; JOHN
POLK, Personal Representative, Estate of
Frank Polk; BUDD MACKENZIE, Attorney for
John Polk and Estate of Frank Polk; BRUCE
REEVES, Referee, Contra Costa Superior
Court; STEVEN ANDERSON, Referee,
Contra Costa Superior Court; DAN
HOROWITZ, Defense Counsel; IVAN
GOLDE, Lien Holder; GAYLE LANGSTON,
Real Estate Agent; DYLAN and ERIKA
HUGHES, buyers; LAND AMERICA TITLE
CO.; DEBORAH PATRICK, Warden, Central
California Women’s Facility; Lieutenant
CAMBRIDGE, CCWF; CCWF; Sergeant
ROBERTS, CCWF; Sergeant GIBSON,
CCWF; MATTHEW CATE, Director,
California Department of Corrections and
Rehabilitation; and JOHN AND JANE DOES
1-20,
ORDER DISMISSING
COMPLAINT WITH LEAVE
TO AMEND
Defendants.
23
/
24
Plaintiff, a prisoner at Valley State Prison for Women, has filed a pro se civil
25
26
complaint. She has been granted leave to proceed in forma pauperis.
27
///
28
///
1
BACKGROUND
2
Plaintiff was convicted of second degree murder of her husband in a well-publicized
3
trial. See People v. Polk, 190 Cal. App. 4th 1183 (2010). Plaintiff’s claims here involve the
4
sale of her interest in the family home to satisfy Contra Costa’s lien for what it claimed were
5
the costs of her defense. Plaintiff contended in her appeal of the criminal conviction that
6
the trial court had not held a hearing to determine if she could afford to pay the lien before
7
approving its payment. The court of appeal held that such a hearing was necessary and
8
remanded with instructions to hold one. Id. at 1208-11. The hearing was held after remand
9
and her obligation and ability to pay the lien upheld. Am. Compl. at 22.
Plaintiff also filed four appeals from orders in an action brought by the executor of
11
For the Northern District of California
United States District Court
10
her husband’s estate to partition real property. See Polk v. Polk, 2009 WL 2613930 (2009).
12
She was entirely unsuccessful. Id. at *1, *8. Many of the issues in those appeals appear
13
to be similar to the claims she raises here.
14
15
16
DISCUSSION
A.
Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners
17
seek redress from a governmental entity or officer or employee of a governmental entity.
18
28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and
19
dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may
20
be granted, or seek monetary relief from a defendant who is immune from such relief. Id. at
21
1915A(b)(1), (2). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police
22
Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
23
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of
24
the claim showing that the pleader is entitled to relief." "Specific facts are not necessary;
25
the statement need only '"give the defendant fair notice of what the . . . . claim is and the
26
grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations
27
omitted). Although in order to state a claim a complaint “does not need detailed factual
28
allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] to relief'
2
1
requires more than labels and conclusions, and a formulaic recitation of the elements of a
2
cause of action will not do. . . . Factual allegations must be enough to raise a right to relief
3
above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
4
(citations omitted). A complaint must proffer "enough facts to state a claim to relief that is
5
plausible on its face." Id. at 570. The United States Supreme Court has recently explained
6
the “plausible on its face” standard of Twombly: “While legal conclusions can provide the
7
framework of a complaint, they must be supported by factual allegations. When there are
8
well-pleaded factual allegations, a court should assume their veracity and then determine
9
whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009). Complaints in pro se prisoner cases, such as this one, must be liberally
11
For the Northern District of California
United States District Court
10
construed in favor of the plaintiff when applying the Twombly/Iqbal pleading standard.
12
Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010).
13
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential
14
elements: (1) that a right secured by the Constitution or laws of the United States was
15
violated, and (2) that the alleged deprivation was committed by a person acting under the
16
color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
17
B.
Legal Claims
18
1.
19
The statute of limitations for civil RICO actions is four years. Agency Holding Corp.
20
v. Malley-Duff & Associates, Inc., 483 U.S. 143, 156 (1987). The Ninth Circuit follows the
21
“injury discovery” statute of limitations rule for civil RICO claims. Pincay v. Andrews, 238
22
F.3d 1106, 1109 (2001). “Under this rule, ‘the civil RICO limitations period begins to run
23
when a plaintiff knows or should know of the injury that underlies his cause of action.’” Id.
24
at 1109 (quoting Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir.1996) (internal quotation
25
marks omitted)). The “injury discovery” rule creates a disjunctive two-prong test of actual or
26
constructive notice, under which the statute begins running under either prong. Id.
27
28
RICO
Plaintiff contends that defendants Horowitz, Polk, Mackenzie, Golde, Daly,
Langston, Anderson, Marchesi, Reeves, the Hughes, and Land America violated RICO by
3
1
forcing the sale of her house to satisfy the county’s lien. She alleges in the complaint that
2
in 2003 defendant Horowitz, who then was her defense attorney, forced her to sign an
3
agreement for a lien on her house in favor of the county for the costs of defense, and that
4
the county’s judgment for the costs of defense was obtained in 2007. It thus appears that
5
she knew as of 2007 that the county intended to collect from her the costs of defense, and
6
that it intended to try to collect from her equity in the house. Thus it may be that she knew
7
of or should have known of the injury arising from defendants’ purported RICO violations
8
more than four years before she commenced this suit. She will be ordered to show cause
9
why the RICO claims should not be dismissed as barred by the statute of limitations. See
Franklin v. Murphy, 745 F.2d 1221, 1228-30 (9th Cir. 1984) (dismissal under 28 U.S.C.
11
For the Northern District of California
United States District Court
10
§ 1915 where the defense is complete and obvious from the face of the pleadings or the
12
court's own records).
13
2.
14
Plaintiff contends that defendants Polk, Mackenzie, Horowitz and Golde violated her
Sixth Amendment Claims
15
right to counsel by interfering with her attempts to obtain other counsel (perhaps by
16
preventing her from using her assets to retain counsel) and violated her right to present a
17
defense by threatening a key witness. Plaintiff has not pleaded facts that would make it
18
plausible that any of those named as defendants were acting under color of state law or
19
were state actors when they performed the acts allegedly resulting in violation of plaintiff’s
20
Sixth Amendment rights.
21
Furthermore, this claim appears to be barred by Heck v. Humphrey, 512 U.S. 477
22
(1994). In Heck the United States Supreme Court held that in order to recover damages for
23
an allegedly unconstitutional conviction or imprisonment, or for other harm caused by
24
actions whose unlawfulness would render a conviction or sentence invalid, a plaintiff must
25
prove that the conviction or sentence has been reversed on direct appeal, expunged by
26
executive order, declared invalid by a state tribunal authorized to make such determination,
27
or called into question by a federal court's issuance of a writ of habeas corpus. Id. at 486-
28
487. A claim for damages arising from a conviction or sentence that has not been so
4
1
2
invalidated is not cognizable under section 1983. Id.
When a state prisoner seeks damages in a section 1983 suit, the district court must
3
consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of
4
her continued confinement; if it would, the complaint must be dismissed unless the plaintiff
5
can demonstrate that the conviction or sentence has already been invalidated. Id. at 487.
6
The conviction has not been invalidated, so this claim must be dismissed. See
7
Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (claims barred by Heck may
8
be dismissed sua sponte without prejudice).
9
3.
Section 1985(3).
Plaintiff contends that defendants Horowitz, Golde, Daly, Campbell, Anderson,
11
For the Northern District of California
United States District Court
10
Reeves, Marchesi, Anderson, Polk, Mackenzie, the Hughes, and Land America were
12
involved in a conspiracy against her that violated 42 U.S.C. §1985(3).
13
Section 1985(3) of title 42 of the United States Code provides a cause of action
14
against state or private conspiracies. See Griffin v. Breckenridge, 403 U.S. 88, 101-02
15
(1971). A cause of action under section 1985(3) requires a showing of some racial or
16
class-based discrimination. Kush v. Rutledge, 460 U.S. 719, 724-26 (1983). Other than
17
race-based classes, it is unclear what classes may be protected; the class must be
18
something more than a group of individuals who all want to engage in conduct that the
19
defendant disfavors, and federal courts should exercise restraint in extending § 1985(3)
20
beyond racial prejudice. Butler v. Elle, 281 F.3d 1014, 1028 (9th Cir. 2002).
21
22
Plaintiff has failed to allege a class basis for the purported conspiracy. This claim
will be dismissed with leave to amend.
23
4.
24
Plaintiff contends that defendants Horowitz, Polk, Mackenzie, Golde, Daly,
18 U.S.C. §1956
25
Langston, Anderson, Marchesi, Reeves, the Hughes, and Land America violated 18 U.S.C.
26
§1956, a money laundering statute. Section 1956 is a criminal statute. It thus cannot be
27
enforced by way of a private civil suit. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.
28
1980) (per curiam). This claim will be dismissed with prejudice.
5
1
5.
2
Plaintiff contends that defendants Golde, Daly, Anderson and Marchesi violated her
3
equal protection rights “when they invaded my homestead for payment of fraudulent claims
4
. . . .” Pet. at 23. Plaintiff has not alleged any formal distinction in California law between
5
indigent litigants and nonindigents as to assertion of homestead rights, which is necessary
6
to a claim that a statute is unconstitutional on its face, or facts identifying nonindigents
7
whose homesteads were not “invaded” under similar circumstances, which would be
8
necessary to make plausible an “as applied” claim. This claim will be dismissed with leave
9
to amend.
Equal Protection Claims
6.
11
For the Northern District of California
United States District Court
10
Plaintiff contends that because she was in protective or administrative segregation at
Access to Courts
12
the Central California Women’s Facility, she was not allowed access to a law library or
13
“supplies,” causing her to miss filing deadlines to protect her “property interests.” The
14
defendants on this claim are Roberts, Gibson, Lieutenant Cambridge, and CDC Director
15
Cate. Amen. Pet. at 24. A prisoner's constitutional right to litigation assistance is limited to
16
the tools prisoners need in order to attack their sentences, either directly or collaterally, and
17
in order to challenge the conditions of their confinement. Lewis v. Casey, 518 U.S. 343,
18
355 (1996). The right to such assistance is limited to the pleading stage. Id. The state is
19
not required to enable the prisoner to discover grievances or to litigate effectively once in
20
court. Id. at 354. This claim will be dismissed without leave to amend.
21
7.
22
In her statement of her “Legal Claims” on pages twenty-two through twenty-five of
Other Defendants
23
the amended petition plaintiff does not mention defendants Rupf, the Sheriff of Contra
24
Costa County, or Patrick, Warden of the Central California Women’s Facility. The claims
25
against them will be dismissed with leave to amend.
26
27
28
CONCLUSION
1. Plaintiff’s RICO claims are DISMISSED with leave to amend to allege facts that
would show that they are not barred by the statute of limitations.
6
1
2. Plaintiff’s Sixth Amendment claims are DISMISSED without prejudice to bringing
2
them if her conviction is overturned in another forum. Unless that has now occurred, this
3
claim should not be included in the second amended petition.
4
5
3. Plaintiff’s money laundering claims are DISMISSED with prejudice. They should
not be included in the second amended petition.
6
4. Plaintiff’s claims pursuant to 42 U.S.C. § 1985(3), her equal protection claims, her
7
access to courts claims, and her claims against defendants Rupf and Patrick are
8
DISMISSED with leave to amend.
9
5. If plaintiff chooses to amend, she shall do so within twenty-eight days of the date
this order is entered. The amended complaint must include the caption and civil case
11
For the Northern District of California
United States District Court
10
number used in this order and the words SECOND AMENDED COMPLAINT on the first
12
page. Because an amended complaint completely replaces the original complaint, plaintiff
13
must include in it all the claims she wishes to present. See Ferdik v. Bonzelet, 963 F.2d
14
1258, 1262 (9th Cir. 1992). She may not incorporate material from the original complaint
15
by reference. Failure to amend within the designated time will result in the dismissal of the
16
case.
17
6. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the
18
court informed of any change of address by filing a separate paper with the clerk headed
19
“Notice of Change of Address,” and must comply with the court's orders in a timely fashion.
20
Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to
21
Federal Rule of Civil Procedure 41(b).
22
23
IT IS SO ORDERED.
Dated: August 24, 2012.
PHYLLIS J. HAMILTON
United States District Judge
24
25
26
27
28
G:\PRO-SE\PJH\CR.12\Polk0193.dwlta.wpd
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?