(PS) Steele v. Steele et al, No. 2:2009cv01769 - Document 8 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 1/25/10 RECOMMENDING that this action be dismissed with prejudice. Objections due within 14 days of service. (Owen, K) Modified on 1/26/2010 (Owen, K).
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(PS) Steele v. Steele et al Doc. 8 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DANNY STEELE, 11 12 Plaintiff, No. CIV S-09-1769 LKK GGH PS vs. 13 MICHAEL STEELE, et al., 14 Defendants. 15 16 FINDINGS & RECOMMENDATIONS _______________________________/ Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 28 17 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 18 U.S.C. § 636(b)(1). 19 By order of September 16, 2009, plaintiff was informed of the deficiencies in his 20 complaint and given the opportunity to file an amended complaint. Plaintiff’s amended 21 complaint has now been reviewed. 22 The court is required to screen complaints brought by prisoners seeking relief 23 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 24 § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised 25 claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 26 granted, or that seek monetary relief from a defendant who is immune from such relief. 28 1 Dockets.Justia.com 1 2 U.S.C. § 1915A(b)(1),(2). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 3 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 4 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 5 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 6 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 7 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 8 Cir. 1989); Franklin, 745 F.2d at 1227. 9 A complaint must contain more than a “formulaic recitation of the elements of a 10 cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the 11 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). 12 “The pleading must contain something more...than...a statement of facts that merely creates a 13 suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal 14 Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient 15 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 16 v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009). “A claim has facial plausibility when the 17 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 18 defendant is liable for the misconduct alleged.” Id. In reviewing a complaint under this 19 standard, the court must accept as true the allegations of the complaint in question, Hospital 20 Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 21 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor. Jenkins v. 22 McKeithen, 395 U.S. 411, 421 (1969). 23 The amended complaint alleges that defendant Michael Steele was instrumental in 24 plaintiff’s arrest. It further alleges defendants Michael and Susan Steele along with newly added 25 defendant district attorney John O’Mara “did conspire to, and acting under ‘color of law,’ 26 fraudulently take plaintiff’s property and other business interests by filling out fraudulent and 2 1 perjur[i]ous affidavits and testimonies during the period from [plaintiff’s arrest in] 2001 till his 2 sentencing in 2005.” A.C., at 2-3. The asserted bases for these claims are the 4th, 5th, 6th, 8th, and 3 14th Amendments to the Constitution. Plaintiff seeks monetary damages and a variety of 4 injunctive relief, including an order preventing defendants from liquidating his property. 5 Plaintiff appears to be alleging that there was no probable cause to arrest him, 6 because the arrest was based on Michael Steele’s misconduct and improper involvement. The 7 allegations of actions by Michael and Susan Steele, as well as prosecuting attorney John O’Mara 8 following his arrest appear to assert violations of due process protections in regard to his criminal 9 prosecution in state court. 10 As such, the undersigned previously warned plaintiff that this action may be 11 barred by Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994). In Heck, an Indiana state 12 prisoner brought a civil rights action under § 1983 for damages. Claiming that state and county 13 officials violated his constitutional rights, he sought damages for improprieties in the 14 investigation leading to his arrest, for the destruction of evidence, and for conduct during his trial 15 (“illegal and unlawful voice identification procedure”). Convicted on voluntary manslaughter 16 charges, and serving a fifteen year term, plaintiff did not seek injunctive relief or release from 17 custody. The United States Supreme Court affirmed the Court of Appeal’s dismissal of the 18 complaint and held that: 19 20 21 22 23 in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under 1983. 24 25 26 Heck, 512 U.S. at 486, 114 S. Ct. at 2372. The Court expressly held that a cause of action for 3 1 damages under § 1983 concerning a criminal conviction or sentence cannot exist unless the 2 conviction or sentence has been invalidated, expunged or reversed. Id. 3 Plaintiff’s claims against defendants Michael and Susan Steele implicating the 4 validity of his conviction are barred unless the conviction has been invalidated, expunged or 5 reversed. On amendment, plaintiff does not unequivocally assert that his conviction has been 6 invalidated, expunged or reversed. The only possible reference to this issue is plaintiff’s vague 7 declaration “that state court invalidates original imposition of sentence and that plaintiff 8 accordingly meets all standard legal tests barring this suit from further proceedings.” A.C. at 7. 9 This unclear reference is not sufficient to avoid a Heck bar. 10 Furthermore, as the undersigned previously advised plaintiff, the constitutional 11 grounds alleged require state action, and two of the defendants here are not state actors. In order 12 to state a claim under 42 U.S.C. § 1983,1 plaintiff must allege: (1) the violation of a federal 13 constitutional or statutory right; and (2) that the violation was committed by a person acting 14 under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250 (1988). “[P]rivate 15 parties are not generally acting under color of state law, and . . . ‘ “ ‘[c]onclusionary allegations, 16 unsupported by facts, [will be] rejected as insufficient to state a claim under the Civil Rights 17 Act.’ ”’ Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir.1984) (citation 18 omitted).” Price v. State of Hawaii, 939 F.2d 702, 707 -708 (9th Cir. 1991). 19 20 As plaintiff continues to allege that Michael and Susan Steele are state actors, and continues to bring his claim under 42 U.S.C. § 1983, these defendants must be dismissed. 21 22 In regard to newly added defendant O’Mara, to the extent that plaintiff seeks allege violations of his civil rights in regard to his criminal prosecution, his claim fails. 23 24 25 26 1 42 U.S.C. § 1983 provides: “Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 4 1 Prosecutors are absolutely immune from civil suits for damages under § 1983 which challenge 2 activities related to the initiation and presentation of criminal prosecutions. Imbler v. Pachtman, 3 424 U.S. 409 (1976). Determining whether a prosecutor's actions are immunized requires a 4 functional analysis. The classification of the challenged acts, not the motivation underlying 5 them, determines whether absolute immunity applies. Ashelman v. Pope, 793 F.2d 1072 (9th 6 Cir. 1986)(en banc). The prosecutor's quasi-judicial functions, rather than administrative or 7 investigative functions, are absolutely immune. Thus, even charges of malicious prosecution, 8 falsification of evidence, coercion of perjured testimony and concealment of exculpatory 9 evidence will be dismissed on grounds of prosecutorial immunity. See Stevens v. Rifkin, 608 10 11 F.Supp. 710, 728 (N.D. Cal. 1984). As plaintiff already has had the opportunity to cure most of these defects, and 12 prosecutorial immunity is not capable of being cured on amendment, it is recommended that the 13 complaint be dismissed without leave to further amend. 14 15 16 In accordance with the above, IT IS HEREBY RECOMMENDED that this action be dismissed with prejudice. These findings and recommendations are submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 18 fourteen days after being served with these findings and recommendations, plaintiff may file 19 written objections with the court. The document should be captioned “Objections to Magistrate 20 Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 21 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 22 Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 DATED: January 25, 2010 24 /s/ Gregory G. Hollows 25 UNITED STATES MAGISTRATE JUDGE GGH:076 - Steele1769.fr2.wpd 26
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