Flinner v. George et al, No. 3:2012cv00220 - Document 4 (S.D. Cal. 2012)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). The case is DISMISSED without prejudice for failing to state a claim upon which relief may be granted, as frivolous and for seeking money damages against immune Defendants. In addition, the Court finds further amendment would be futile. It is further certified t hat an IFP appeal from this final order of dismissal would not appear to be taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). The Clerk of the Court shall close the file. (Order electronically transmitted to Matthew Cate, Secretary CDCR). Signed by Judge Larry Alan Burns on 3/1/12. (All non-registered users served via U.S. Mail Service)(kaj)
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Flinner v. George et al Doc. 4 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 8 9 10 11 12 MICHAEL FLINNER, CDCR # V-30064 Civil No. Plaintiff, 13 vs. (2) DISMISSING ACTION FOR FAILING TO STATE A CLAIM, AS FRIVOLOUS AND FOR SEEKING MONETARY DAMAGES AGAINST DEFENDANTS WHO ARE IMMUNE PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 16 17 R. GEORGE, et al., 18 19 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; and 14 15 12cv0220 LAB (POR) Defendant. 20 21 22 Plaintiff, a state inmate currently incarcerated at San Quentin State Prison located in San 23 Quentin, California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42 24 U.S.C. § 1983. Plaintiff has also filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 25 to 28 U.S.C. § 1915(a) [Doc. No. 2]. 26 I. M OTION TO P ROCEED IFP 27 All parties instituting any civil action, suit or proceeding in a district court of the United 28 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 K:\C O M M O N \EV ER Y O N E\_EFILE-PR O SE\LAB\12cv0220-grt IFP & dsm.w pd 1 12cv0220 LAB (POR) Dockets.Justia.com 1 U.S.C. § 1914(a). An action may proceed despite a party’s failure to pay only if the party is 2 granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 3 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 4 Prisoners granted leave to proceed IFP however, remain obligated to pay the entire fee in 5 installments, regardless of whether the action is ultimately dismissed for any reason. See 28 6 U.S.C. § 1915(b)(1) & (2). 7 The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C. 8 § 1915(a)(1), and that he has attached a certified copy of his trust account statement pursuant to 9 28 U.S.C. § 1915(a)(2) and S.D. C AL. C IVLR 3.2. Plaintiff’s trust account statement shows that 10 he has insufficient funds from which to pay an initial partial filing fee. 11 Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP [ECF No. 2] and 12 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the Court further 13 orders the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”) 14 to garnish the entire $350 balance of the filing fees owed in this case, collect and forward them 15 to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 16 § 1915(b)(1). 17 II. S CREENING P URSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 18 The Prison Litigation Reform Act (“PLRA”)’s amendments to 28 U.S.C. § 1915 also 19 obligate the Court to review complaints filed by all persons proceeding IFP and by those, like 20 Plaintiff, who are “incarcerated or detained in any facility [and] accused of, sentenced for, or 21 adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, 22 probation, pretrial release, or diversionary program,” “as soon as practicable after docketing.” 23 See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Under these provisions, the Court must sua 24 sponte dismiss any prisoner civil action and all other IFP complaints, or any portions thereof, 25 which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who 26 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126- 27 27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 n.1 (9th Cir. 28 2000) (§ 1915A). K:\C O M M O N \EV ER Y O N E\_EFILE-PR O SE\LAB\12cv0220-grt IFP & dsm.w pd 2 12cv0220 LAB (POR) 1 Plaintiff’s Complaint alleges that there is a vast conspiracy between the Justices of the 2 California Supreme Court, Justices from the Ninth Circuit Court of Appeals, the California State 3 Bar Association, and the Attorney General for the State of California to deprive him of his 4 constitutional rights. Specifically, Plaintiff alleges that there was a conspiracy to find him guilty 5 of several crimes which lead to his death sentence. These claims amount to an attack on the 6 constitutional validity of an underlying state criminal proceeding, and as such, may not be 7 maintained pursuant to 42 U.S.C. § 1983 unless and until he can show that conviction has 8 already been invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Ramirez v. Galaza, 9 334 F.3d 850, 855-56 (9th Cir. 2003) (“Absent such a showing, ‘[e]ven a prisoner who has fully 10 exhausted available state remedies has no cause of action under § 1983....’”) (quoting Heck, 512 11 U.S. at 489). 12 “In any § 1983 action, the first question is whether § 1983 is the appropriate avenue to 13 remedy the alleged wrong.” Haygood v. Younger, 769 F.2d 1350, 1353 (9th Cir. 1985) (en 14 banc). A prisoner in state custody simply may not use a § 1983 civil rights action to challenge 15 the “fact or duration of his confinement.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). The 16 prisoner must seek federal habeas corpus relief instead. Wilkinson v. Dotson, 544 U.S. 74, 78 17 (2005) (quoting Preiser, 411 U.S. at 489). Thus, Plaintiff’s § 1983 action “is barred (absent 18 prior invalidation)--no matter the relief sought (damages or equitable relief), no matter the target 19 of his suit (state conduct leading to conviction or internal prison proceedings)--if success in that 20 action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson, 21 544 U.S. at 82. 22 In this case, Plaintiff’s claims that his constitutional rights were violated during his 23 criminal trial “necessarily imply the invalidity” of his criminal proceedings and continuing 24 incarceration. Heck, 512 U.S. at 487. In creating the favorable termination rule in Heck, the 25 Supreme Court relied on “the hoary principle that civil tort actions are not appropriate vehicles 26 for challenging the validity of outstanding criminal judgments.” Heck, 511 U.S. at 486 27 (emphasis added). This is precisely what Plaintiff attempts to accomplish here. Therefore, to 28 satisfy Heck’s “favorable termination” rule, Plaintiff must first allege facts which show that the K:\C O M M O N \EV ER Y O N E\_EFILE-PR O SE\LAB\12cv0220-grt IFP & dsm.w pd 3 12cv0220 LAB (POR) 1 conviction and/or sentence which forms the basis of his § 1983 Complaint has already been: 2 (1) reversed on direct appeal; (2) expunged by executive order; (3) declared invalid by a state 3 tribunal authorized to make such a determination; or (4) called into question by the grant of a 4 writ of habeas corpus. Heck, 512 U.S. at 487 (emphasis added). 5 Plaintiff’s Complaint alleges no facts sufficient to satisfy Heck. Thus, because Plaintiff 6 seeks damages for allegedly unconstitutional criminal proceedings in his criminal case and 7 appeals, and because he has not shown that his conviction has been invalidated, either by way 8 of direct appeal, state habeas or pursuant to 28 U.S.C. § 2254, a section 1983 claim for damages 9 cannot be maintained, see Heck, 512 U.S. at 489-90, and his Complaint must be dismissed 10 without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (finding 11 that an action barred by Heck has not yet accrued and thus, must be dismissed without prejudice 12 so that the plaintiff may reassert his § 1983 claims if he ever succeeds in invalidating the 13 underlying conviction or sentence); accord Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 14 1997). 15 Moreover, even if Plaintiff could show that the criminal conviction upon which his claims 16 are based has already been terminated in his favor, his Complaint would still be subject to 17 dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) to the extent it seeks monetary 18 damages against the California Attorney General, State Court Judges and Federal Court Judges. 19 Criminal prosecutors are absolutely immune from civil damages suits premised upon acts 20 committed within the scope of their official duties which are “intimately associated with the 21 judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976); see also 22 Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993); Burns v. Reed, 500 U.S. 478, 487-93 23 (1991). A prosecutor is immune even when the prosecutor’s malicious or dishonest action 24 deprived the defendant of his or her liberty. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 25 1986). 26 All the Judicial Defendants also absolutely immune from money damages arising from 27 alleged constitutional violations during Plaintiff’s criminal trial and appeals. “Judges and those 28 performing judge-like functions are absolutely immune from damage liability for acts performed K:\C O M M O N \EV ER Y O N E\_EFILE-PR O SE\LAB\12cv0220-grt IFP & dsm.w pd 4 12cv0220 LAB (POR) 1 in their official capacities.” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). Therefore, 2 all of the Judicial Defendants have absolute immunity from civil proceedings relating to these 3 actions, which were performed within their judicial discretion. 4 In addition, the Court finds that Plaintiff has made these claims before in a prior action. 5 Thus, plaintiff’s instant Complaint is subject to sua sponte dismissal pursuant to 28 U.S.C. 6 § 1915A(b)(1) because it appears to be duplicative of a case Plaintiff has already litigated. 7 Plaintiff’s Complaint contains identical claims that are found in Shove, et al. v. United States 8 District Court Judges, et al., D.C. Civil Case No. 1:09-cv-2316 UNA. A court “may take notice 9 of proceedings in other courts, both within and without the federal judicial system, if those 10 proceedings have a direct relation to matters at issue.” United States ex rel. Robinson Rancheria 11 Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 12 A prisoner’s complaint is considered frivolous under 28 U.S.C. § 1915A(b)(1) if it 13 “merely repeats pending or previously litigated claims.” Cato v. United States, 70 F.3d 1103, 14 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and internal 15 quotations omitted). Because Plaintiff has already litigated the same claims presented in the 16 instant action in Shove, et al. v. United States District Court Judges, et al., D.C. Civil Case No. 17 1:09-cv-2316 UNA, the Court hereby DISMISSES Civil Case No. 12cv0220 LAB (POR) 18 pursuant to 28 U.S.C. § 1915A(b)(1). See Cato, 70 F.3d at 1105 n.2; Resnick, 213 F.3d at 446 19 n.1. 20 For all these reasons, the Court finds that Plaintiff’s Complaint must be dismissed sua 21 sponte for failing to state a claim upon which relief can be granted, as frivolous and for seeking 22 monetary damages against immune defendants pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 23 and 1915A(b). 24 III. C ONCLUSION AND O RDER 25 Good cause appearing, IT IS HEREBY ORDERED: 26 1. 27 GRANTED. 28 Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is /// K:\C O M M O N \EV ER Y O N E\_EFILE-PR O SE\LAB\12cv0220-grt IFP & dsm.w pd 5 12cv0220 LAB (POR) 1 2. The Secretary of California Department of Corrections and Rehabilitation, or his 2 designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee 3 owed in this case by collecting monthly payments from the account in an amount equal to twenty 4 percent (20%) of the preceding month’s income and forward payments to the Clerk of the Court 5 each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). 6 ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 7 ASSIGNED TO THIS ACTION. 8 9 10 3. The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate, Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502, Sacramento, California 95814. 11 IT IS FURTHER ORDERED that: 12 4. The case is DISMISSED without prejudice for failing to state a claim upon which 13 relief may be granted, as frivolous and for seeking money damages against immune Defendants. 14 See 28 U.S.C. § 1915(e)(2) & § 1915A(b). In addition, the Court finds further amendment 15 would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of 16 a leave to amend is not an abuse of discretion where further amendment would be futile); see 17 also Robinson v. California Bd. of Prison Terms, 997 F. Supp. 1303, 1308 (C.D. Cal. 1998) 18 (“Since plaintiff has not, and cannot, state a claim containing an arguable basis in law, this action 19 should be dismissed without leave to amend; any amendment would be futile.”) (citing Newland 20 v. Dalton, 81 F.3d 904, 907 (9th Cir. 1996)). 21 5. IT IS FURTHER CERTIFIED that an IFP appeal from this final order of 22 dismissal would not appear to be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3). See 23 Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th 24 Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be 25 frivolous). 26 27 28 K:\C O M M O N \EV ER Y O N E\_EFILE-PR O SE\LAB\12cv0220-grt IFP & dsm.w pd 6 12cv0220 LAB (POR) 1 2 3 The Clerk of the Court shall close the file. DATED: March 1, 2012 4 5 HONORABLE LARRY ALAN BURNS United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K:\C O M M O N \EV ER Y O N E\_EFILE-PR O SE\LAB\12cv0220-grt IFP & dsm.w pd 7 12cv0220 LAB (POR)
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