Branscomb v. Estes, No. 1:2013cv01257 - Document 18 (E.D. Cal. 2013)
Court Description: ORDER DENYING Plaintiff's Objections Construed as a Motion for Reconsideration and DISMISSING Action for Failure to State a Claim 11 , 12 , 14 , 15 , 16 ; ORDER That Dismissal is Subject to 28 U.S.C. § 1915(G), signed by District Judg e Anthony W. Ishii on 12/6/13: Clerk to enter judgment; and This dismissal is subject to the "three-strikes" provisions set forth in 28 U.S.C. § 1915(G). Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir.2011). (Hellings, J)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KERRY BRANSCOMB, 12 13 14 Plaintiff, v. Case No. 1:13-cv-01257-AWI-SAB ORDER DENYING PLAINTIFF S OBJECTIONS CONSTRUED AS A MOTION FOR RECONSIDERATION AND DISMISSING ACTION FOR FAILURE TO STATE A CLAIM CHRISTOPHER ESTES, (ECF Nos. 11, 12, 14, 15, 16) 15 16 Defendant. ORDER THAT DISMISSAL IS SUBJECT TO 28 U.S.C. § 1915(G) 17 18 I. 19 PROCEDURAL HISTORY 20 Plaintiff, proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 21 42 U.S.C. § 1983 on August 12, 2013. (ECF No. 1.) On August 26, 2013, the magistrate judge 22 screened Plaintiff s complaint and it was dismissed with leave to amend. (ECF No. 4.) After 23 Plaintiff failed to file an amended complaint, the magistrate judge issued findings and 24 recommendations recommending the action be dismissed for failure to state a claim. (ECF No. 25 5.) Plaintiff filed an objection on October 21, 2013, and on October 30, 2013, the undersigned 26 issued an order adopting in part the findings and recommendations. (ECF Nos. 7, 8.) In the order 27 adopting, Plaintiff s claims based upon his criminal conviction were dismissed without leave to 28 1 1 amend and Defendant Estes was dismissed from the action. (ECF No. 8.) 2 On November 14, 2013, Plaintiff filed a first amended complaint. (ECF No. 9.) On 3 November 15, 2013, Plaintiff filed an objection to the order dismissing some of his claims and 4 dismissing Defendant Estes from this action. (ECF No. 10.) On November 18, 2013, the 5 magistrate judge screened Plaintiff s first amended complaint; and it was dismissed with leave to 6 amend for failure to state a claim. (ECF No. 11.) On this same date, Plaintiff filed another 7 objection and a supplement to his complaint. (ECF Nos. 12, 13.) On November 21, 2013, 8 Plaintiff filed an objection to the order dismissing his complaint with leave to amend and a 9 second amended complaint. (ECF Nos. 14, 15.) On November 25, 2013 another amended 10 complaint was lodged. (ECF No. 16.) On November 27, 2013, the magistrate judge issued an 11 order striking Plaintiff s supplement to the complaint. (ECF NO. 17.) 12 II. 13 SCREENING REQUIREMENT 14 The Court is required to screen complaints brought by prisoners seeking relief against a 15 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 16 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 17 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 18 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 19 1915(e)(2)(B). 20 A complaint must contain “a short and plain statement of the claim showing that the 21 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 22 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 24 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 25 that each defendant personally participated in the deprivation of Plaintiff s rights. Jones v. 26 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 27 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 28 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 2 1 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff s claims must be 2 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 3 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 4 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 5 has acted unlawfully” is not sufficient, and “facts that are „merely consistent with a defendant s 6 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d 7 at 969. 8 III. 9 PLAINTIFF’S SECOND AMENDED COMPLAINT 10 On November 21, 2013, Plaintiff filed a second amended complaint which sets forth the 11 claims that have dismissed from this action without leave to amend. The complaint lodged 12 November 25, 2013, once again sets forth these claims and argues that enhancing his sentence 13 based upon an event that occurred fifty years ago is double jeopardy. Plaintiff again requests 14 immediate release and a new trial. 15 As Plaintiff has previously been advised in the August 26, 2013; October 30, 2013; and 16 November 11, 2013 orders from this Court, it is well established that court appointed attorneys 17 are not state actors and therefore Plaintiff may not bring a claim against his public defender under 18 Section 1983, Polk v. Dodson, 454 U.S. 312, 325 (1981); judges and those who perform “judge- 19 like functions are absolutely immune from damage liability for acts performed in their official 20 capacities,” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986); and it has long been 21 established that state prisoners cannot challenge the fact or duration of their confinement in a 22 section 1983 action and Plaintiff s sole remedy lies in habeas corpus relief, Wilkinson v. Dotson, 23 544 U.S. 74, 78 (2005). 24 Plaintiff had been granted leave to file his amended complaint to cure the deficiencies in 25 his Eighth Amendment claim alleging inadequate prison medical care. Further, Plaintiff was 26 advised that in order to state a claim he must link each defendant to some affirmative act or 27 failure to act that demonstrates a violation of his federal rights. 28 To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison 3 1 conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 2 452 U.S. 337, 347, 101 S. Ct. 2392, 2399 (1981). A prisoner s claim of inadequate medical care 3 does not rise to the level of an Eighth Amendment violation unless (1) “the prison official 4 deprived the prisoner of the „minimal civilized measure of life s necessities, ” and (2) “the prison 5 official „acted with deliberate indifference in doing so. ” Toguchi v. Chung, 391 F.3d 1051, 1057 6 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted)). 7 A prison official does not act in a deliberately indifferent manner unless the official “knows of 8 and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 9 834 (1994). 10 Plaintiff has failed to name any defendant who was aware that he has a serious medical 11 need. Further, the only allegation contained in the second amended complaint that would apply to 12 Plaintiff s Eighth Amendment claim is that he needs his primary care physician. The lodged 13 complaint does not contain any factual allegations regarding the medical care Plaintiff is 14 receiving in prison. Plaintiff fails to state a cognizable claim that any prison official has been 15 deliberately indifferent to his need for medical care while he has been incarcerated. 16 IV. 17 OBJECTIONS 18 Plaintiff filed objections on November 15, and 18, 2013. In these documents Plaintiff sets 19 forth arguments regarding his conviction and sentencing and is requesting immediate release, a 20 retrial, the conviction be expunged from his record, or sentencing to Veteran s Court. Plaintiff s 21 objection filed November 21, 2013, merely sets forth his arguments and states that he wants his 22 day in court. The Court shall construe Plaintiff s objections as a motion for reconsideration of the 23 orders issued October 30, 2013 and November 18, 2013. 24 “A motion for reconsideration should not be granted, absent highly unusual 25 circumstances, unless the district court is presented with newly discovered evidence, committed 26 clear error, or if there is an intervening change in the controlling law,” and it “may not be used to 27 raise arguments or present evidence for the first time when they could reasonably have been 28 raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 4 1 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted). Plaintiff s 2 objections merely set forth the facts and arguments that the Court has previously considered. 3 Plaintiff fails to set forth any grounds entitling him to reconsideration of the prior orders of the 4 Court. 5 As Plaintiff has been advised, he may not seek to invalidate his conviction or sentence in 6 an action pursuant to Section 1983. In order to raise claims challenging the actions of his public 7 defender or his underlying conviction or sentencing, Plaintiff must bring a petition for a writ of 8 habeas corpus. Plaintiff is improperly attempting to litigate these issues in this civil rights action 9 and may not do so. 10 Regardless, the Court notes that Plaintiff s most recent complaint appears to be based on 11 Plaintiff s contention that the use of his prior felony conviction to enhance his current sentence 12 under California's “three strikes law” violates his rights against double jeopardy. This claim is 13 without merit. 14 statutes like California's three strikes law because the “enhanced punishment imposed for the later 15 offense „is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes, 16 but instead as „a stiffened penalty for the latest crime. ” Witte v. United States, 515 U.S. 389, 17 400 (1995) (quoting Gryger v. Burke, 334 U.S. 728, 732 (1948)); United States v. Kaluna, 192 18 F.3d 1188, 1198-99 (9th Cir. 1999) (en banc). The Supreme Court has “rejected double jeopardy challenges” to recidivist 19 V. 20 CONCLUSION AND ORDER 21 Plaintiff s complaint fails to state a claim upon which relief may be granted under section 22 1983. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend „shall be freely 23 given when justice so requires, ” Fed. R. Civ. P. 15(a), and “[l]eave to amend should be granted if 24 it appears at all possible that the plaintiff can correct the defect,” Lopez v. Smith, 203 F.3d 1122, 25 1130 (9th Cir. 2000) (internal citations omitted). However, in this action Plaintiff has been 26 granted two opportunities to amend the complaint, with guidance by the Court. Plaintiff has now 27 filed four complaints without alleging facts against any of the defendants sufficient to state a 28 claim under § 1983. The Court finds that the deficiencies outlined above are not capable of being 5 1 cured by amendment, and therefore further leave to amend should not be granted. 28 U.S.C. § 2 1915(e)(2)(B)(ii); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. 5 6 Plaintiff s objections which are construed as motions for reconsideration are DENIED; 2. Pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this action is HEREBY 7 DISMISSED in its entirety based on Plaintiff s failure to state a claim upon which 8 relief may be granted under section 1983; 9 3. The Clerk s Office shall enter judgment; and 10 4. This dismissal is subject to the “three-strikes” provision set forth in 28 U.S.C. § 11 1915(g). Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011). 12 13 14 IT IS SO ORDERED. Dated: December 6, 2013 SENIOR DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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