Bonilla v. Harrell et al, No. 1:2018cv00173 - Document 3 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Action for Failure to Submit an Application to Proceed In Forma Pauperis OR Pay the Filing Fee, and Failure to State a Claim Upon Which Relief May be Granted, signed by Magistrate Judge Michael J. Seng on 3/20/18. Objections to F&R Due Within Fourteen Days. (Marrujo, C)
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1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF CALIFORNIA 13 14 STEVEN WAYNE BONILLA, 15 Plaintiff, 16 17 v. JUDGE ARLAN HARRELL, et al., 18 Defendants. CASE NO. 1:18-cv-00173-LJO-MJS FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO SUBMIT AN APPLICATION TO PROCEED IN FORMA PAUPERIS OR PAY THE FILING FEE, AND FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED FOURTEEN DAY OBJECTION DEADLINE 19 20 21 Plaintiff is a state prisoner proceeding pro se in what appears to be a civil rights 22 23 action pursuant to 42 U.S.C. § 1983. 24 I. Failure to Pay Filing Fee 25 Plaintiff initiated this action on February 2, 2018. (ECF No. 1.) He did not file an 26 application to proceed in forma pauperis (“IFP”) or pay the applicable filing fee. On 27 February 7, 2018, he was ordered to respond within thirty days by either filing an 28 application to proceed IFP or paying the filing fee in full. He did not comply. 1 1 A civil action may not proceed absent the submission of either the filing fee or a 2 completed application to proceed in forma pauperis. 28 U.S.C. §§ 1914, 1915. Based on 3 Plaintiff’s failure to comply with the Court’s order, dismissal of this action is appropriate. 4 See In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 5 (9th Cir. 2006); Local Rule 110. 6 II. Failure to State a Claim 7 A. Screening Requirement 8 The Court is required to screen complaints brought by prisoners seeking relief 9 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 10 § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has 11 raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which 12 relief may be granted, or that seek monetary relief from a defendant who is immune from 13 such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion 14 thereof, that may have been paid, the court shall dismiss the case at any time if the court 15 determines that . . . the action or appeal . . . fails to state a claim upon which relief may 16 be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 17 B. Pleading Standard 18 Section 1983 “provides a cause of action for the deprivation of any rights, 19 privileges, or immunities secured by the Constitution and laws of the United States.” 20 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). 21 Section 1983 is not itself a source of substantive rights, but merely provides a method for 22 vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 23 (1989). 24 To state a claim under § 1983, a plaintiff must allege two essential elements: 25 (1) that a right secured by the Constitution or laws of the United States was violated and 26 (2) that the alleged violation was committed by a person acting under the color of state 27 law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 28 1243, 1245 (9th Cir. 1987). 2 1 A complaint must contain “a short and plain statement of the claim showing that 2 the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 3 are not required, but “[t]hreadbare recitals of the elements of a cause of action, 4 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 5 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 6 Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief 7 that is plausible on its face.” Id. Facial plausibility demands more than the mere 8 possibility that a defendant committed misconduct and, while factual allegations are 9 accepted as true, legal conclusions are not. Id. at 677-78. Plaintiff’s Allegations 10 C. 11 Plaintiff’s allegations are somewhat unclear. However, as best the Court can tell, 12 Plaintiff is challenging proceedings leading to his conviction in the Alameda County 13 Superior Court. He seeks to void the judgment of conviction and to be released from 14 custody. The role of the named defendants – both of whom are judges in Fresno County 15 Superior Court – is not apparent. 16 D. Discussion 17 Petitioner cannot challenge his conviction in this civil rights action. Nor may 18 Plaintiff seek to invalidate the fact or duration of his confinement indirectly through a 19 judicial determination that necessarily implies the unlawfulness of the State’s custody. A 20 section 1983 action is barred, no matter the relief sought, if success in that action would 21 necessarily demonstrate the invalidity of confinement or its duration. Wilkinson v. 22 Dotson, 544 U.S. 74, 81-82 (2005).; Heck v. Humphrey, 512 U.S. 477, 489 (1994) 23 (unless and until favorable termination of the conviction or sentence, no cause of action 24 under section 1983 exists). The exclusive method for challenging the fact or duration of 25 Plaintiff’s confinement is by filing a petition for a writ of habeas corpus. Wilkinson v. 26 Dotson, 544 U.S. 74, 78, 81 (2005). See 28 U.S.C. § 2254(a). The Court notes that 27 Plaintiff presently is pursuing a habeas petition to challenge this conviction. Bonilla v. 28 Ayers, No. 4:08-cv-0471 YGR (N.D. Cal.). 3 1 2 E. 3 In light of the foregoing, Plaintiff’s complaint fails to state a claim upon which relief 4 Conclusion Regarding Failure to State a Claim may be granted. 5 In general, a pro se Plaintiff is entitled to leave to amend unless “it appears 6 beyond doubt that the plaintiff can prove no set of facts in support of his claim which 7 would entitle him to relief.” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984) 8 (citation omitted). “Valid reasons for denying leave to amend include undue delay, bad 9 faith, prejudice and futility.” Cal. Architectural Bldg. Prod. v. Franciscan Ceramics, 818 10 F.2d 1276, 1293 (9th Cir. 1983); Lockman Found. v. Evangelical Alliance Mission, 930 11 F.2d 764, 772 (9th Cir. 1991). 12 Here, defects in the complaint cannot be cured through amendment. The Court 13 concludes leave to amend would be futile and should be denied. 14 III. 15 16 17 18 19 Conclusion and Recommendation Based on the foregoing, it is HEREBY RECOMMENDED that Petitioner’s complaint be dismissed without leave to amend for: 1. Failure to pay the applicable filing fee or file a motion to proceed in forma pauperis; and 2. Failure to state a claim upon which relief may be granted. 20 The findings and recommendation will be submitted to the United States District 21 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). 22 Within fourteen (14) days after being served with the findings and recommendation, the 23 parties may file written objections with the Court. The document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendation.” A party may respond 25 to another party’s objections by filing a response within fourteen (14) days after being 26 served with a copy of that party’s objections. The parties are advised that failure to file 27 objections within the specified time may result in the waiver of rights on appeal. 28 4 1 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 2 F.2d 1391, 1394 (9th Cir. 1991) 3 4 5 IT IS SO ORDERED. Dated: March 20, 2018 /s/ 6 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5