(PS) Herships v. State of California, et al, No. 2:2014cv00089 - Document 6 (E.D. Cal. 2014)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/29/2014 GRANTING 2 Motion to Proceed In Forma Pauperis, DENYING 4 Motion for Appointment of a three-judge panel and RECOMMENDING that this action be dismissed. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Donati, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HOWARD HERSHIPS, 12 Plaintiff, 13 14 No. 2:14-cv-0089 KJM CKD PS v. ORDER AND STATE OF CALIFORNIA, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to 17 18 28 U.S.C. § 1915 to proceed in forma pauperis.1 This proceeding was referred to this court by 19 Local Rule 302(c)(21). Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable 20 21 to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma 22 pauperis will be granted. 28 U.S.C. § 1915(a). The federal in forma pauperis statute authorizes federal courts to dismiss a case if the 23 24 action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, 25 ///// 26 27 28 1 Plaintiff has also requested appointment under 28 U.S.C. § 2284 of a three judge panel to preside over this action. In the circumstances of this case, appointment of a three judge panel is not warranted. 1 1 or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 2 § 1915(e)(2). 3 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 4 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 5 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 6 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 7 490 U.S. at 327. In ruling on plaintiff s motion for a temporary restraining order, the District Court has 8 9 held that the injunctive relief plaintiff seeks in this action is barred under Younger v. Harris, 401 10 U.S. 37 (1971). See ECF No. 5. In Younger, the Supreme Court recognized the “longstanding 11 public policy against federal court interference with state court proceedings . . .” and reversed the 12 District Court s enjoining of a prosecution against Harris for violations of California s criminal 13 syndicalism statutes. Younger, 401 U.S. at 43, 54. Subsequent cases have distilled the principles 14 of Younger into a three-part test: a federal court should abstain from adjudicating a lawsuit if (1) 15 there are pending state judicial proceedings, (2) the state proceedings implicate important state 16 interests, and (3) the state proceedings provide an adequate opportunity to raise federal questions. 17 Middlesex County Ethics Comm. v. Garden State Bar Ass n, 457 U.S. 423, 432 (1982). Whether a state action is “pending” for Younger purposes is not determined by a simple 18 19 comparison of filing dates. Polykoff v. Collins, 816 F.2d 1326, 1332 (9th Cir. 1987). If the state 20 action was filed before the federal case proceeded beyond an embryonic stage or the federal court 21 has conducted any proceedings on the substance of the merits of the case, the first Younger 22 requirement is met. Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 238 (1984); Doran v. 23 Salem Inn, Inc., 422 U.S. 922, 929 (1975). Neither the denial of a temporary restraining order, 24 nor service of the complaint, nor the determination of a motion for a preliminary injunction 25 without a hearing constitute proceedings of substance on the merits of the action. Hicks v. 26 Miranda, 422 U.S. 332, 338-39 (1975); Polykoff, 816 F.2d at 1332. In this case, the state 27 proceedings regarding plaintiff s red light traffic infraction were initiated prior to the filing of 28 ///// 2 1 plaintiff s federal complaint, with a trial date set of January 30, 2014.2 The state court action is 2 therefore “pending” for purposes of Younger abstention. 3 In Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975), the U.S. Supreme Court held that 4 even where the appellee s trial was over by the time Pursue brought its federal complaint, a losing 5 party like Pursue must exhaust its state appellate remedies before seeking relief in the federal 6 court, unless an exception to Younger applies. In World Famous Drinking Emporium, Inc. v. 7 Tempe, 820 F.2d 1079, 1082 (9th Cir. 1987), the Ninth Circuit held, for Younger abstention 8 purposes, exhaustion of state appellate remedies did not occur until the losing party appealed the 9 adverse rulings to the state Supreme Court. Failure to exhaust state appellate remedies satisfies 10 the requirement of ongoing state proceedings. Id. Plaintiff s pleadings do not show he has 11 exhausted his state appellate remedies. The first requirement of Younger thus has been met. 12 Younger held that interference with a state criminal prosecution would disrupt the 13 exercise of a basic state function, “prohibiting the State from carrying out the important and 14 necessary task of enforcing these laws against socially harmful conduct that the State believes in 15 good faith to be punishable under its laws and Constitution.” Younger, 401 U.S. at 51-52. A 16 prosecution for red light violations implicates important state interests. Given the importance of 17 the state s interest in traffic control and safe driving, the second requirement of Younger 18 abstention has been met. “Where valid state interests are involved, a federal court should abstain „unless state law 19 20 clearly bars the interposition of constitutional claims. ” Middlesex County Ethics Comm., 457 21 U.S. at 432 (internal citation omitted). Federal plaintiffs “need be accorded only an opportunity 22 to fairly pursue their constitutional claims in the ongoing state proceedings. . . .” Juidice v. Vail, 23 430 U.S. 327, 337 (1977); Communications Telesystems International v. California Public 24 Utility Commission, 196 F.3d 1011, 1019-20 (9th Cir. 1999). Plaintiff s pleadings do not 25 demonstrate any procedural bar to the state court s considering his constitutional claims in the 26 27 28 2 The complaint appears to have a typographical error wherein a trial date of January 30, 2013 is referenced. Plaintiff s motion for temporary restraining order indicates trial on plaintiff s red light infraction is scheduled for January 30, 2014. 3 1 pending state proceeding. See People ex rel. State Air Resources Board v. Wilmshurst, 68 Cal. 2 App. 4th 1332, 1333-34 (3d Dist. 1999) (considering preemption defense to state proceedings for 3 emissions violations). Thus the third requirement of Younger is met as well. 4 Plaintiff s pleadings present no extraordinary circumstances that warrant an exception to 5 Younger abstention. See Younger, 401 U.S. at 53-54 (extraordinary circumstances might be 6 present where a state statute being enforced violates the United States Constitution in every 7 clause, sentence and paragraph); see also Kugler v. Helfant, 421 U.S. 117, 124-125 (1975) 8 (Younger abstention should not be applied when extraordinary circumstances make it impossible 9 for the state court to fairly and fully adjudicate the federal issues before it). There is no basis for 10 concluding the state court cannot fairly resolve plaintiff s claims. Younger abstention requires 11 this court to defer to the state proceedings. This action should therefore be dismissed. 12 In accordance with the above, IT IS HEREBY ORDERED that: 13 1. Plaintiff s request to proceed in forma pauperis is granted; 14 2. Plaintiff s motion for appointment of a three judge panel (ECF No. 4) is denied; and 15 IT IS HEREBY RECOMMENDED that this action be dismissed. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge s Findings and Recommendations.” 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 29, 2014 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 24 25 26 27 4 hership.ifp.57 28 4
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