Kayaian v. Fresno County, No. 1:2006cv01661 - Document 4 (E.D. Cal. 2006)
Court Description: FINDINGS and RECOMMENDATIONS signed by Judge Dennis L. Beck on 11/20/06 RECOMMENDING that this action be DISMISSED without leave to amend. Objections to F&R's due by 12/26/2006. (Carter-Ford, R)
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Kayaian v. Fresno County Doc. 4 Case 1:06-cv-01661-AWI-DLB Document 4 Filed 11/21/2006 Page 1 of 2 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 SEVAN KAYAIAN, 9 10 Plaintiff, 11 v. 12 FRESNO COUNTY, 13 14 Defendant. 15 ) 1:06cv01661 AWI DLB ) ) ) FINDINGS AND RECOMMENDATION ) REGARDING DISMISSAL OF ACTION ) ) ) ) ) ) ) ) ) 16 Plaintiff, appearing pro se, filed the instant civil rights complaint on November 17, 2006. 17 Plaintiff states that he filed the complaint on behalf of Dae Henderson, a state prisoner. 18 DISCUSSION 19 A. Screening Standard 20 Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the 21 complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof 22 if the court determines that the action is legally “frivolous or malicious,” fails to state a claim 23 upon which relief may be granted, or seeks monetary relief from a defendant who is immune 24 from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state 25 a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be 26 cured by amendment. 27 28 1 Dockets.Justia.com Case 1:06-cv-01661-AWI-DLB 1 2 B. Document 4 Filed 11/21/2006 Page 2 of 2 Analysis Plaintiff purports to file this civil rights complaint on behalf of Dae Henderson, a 3 prisoner. From the allegations in the complaint, it appears that Plaintiff is attempting to 4 challenge Mr. Henderson’s prior conviction. 5 There are two fatal deficiencies in Plaintiff’s complaint. First, Plaintiff cannot represent 6 Mr. Henderson. Although a non-attorney may appear in propria persona on his own behalf, that 7 privilege is personal to him and he has no authority to appear as the attorney for anyone other 8 than himself. C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir.1987) 9 (holding that while a nonattorney may represent himself, he has no authority to appear as an 10 11 attorney for others). Second, when a prisoner challenges the legality or duration of his custody, or raises a 12 constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a 13 writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 14 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). If Mr. Henderson wishes to challenge a 15 prior conviction, he may do so by filing a petition for writ of habeas corpus on his own behalf. 16 RECOMMENDATION 17 Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED 18 19 WITHOUT LEAVE TO AMEND. These findings and recommendations will be submitted to the Honorable Anthony W. 20 Ishii, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after 21 being served with these findings and recommendations, the parties may file written objections 22 with the Court. The document should be captioned "Objections to Magistrate Judge's Findings 23 and Recommendations." The parties are advised that failure to file objections within the 24 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 25 F.2d 1153 (9th Cir. 1991). 26 27 IT IS SO ORDERED. Dated: 3b142a November 20, 2006 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 28 2
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