(PC) Brand v. Schubert, et al., No. 2:2016cv01811 - Document 17 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/1/2018 VACATING 10 Findings and Recommendations and RECOMMENDING this action be dismissed with prejudice. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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(PC) Brand v. Schubert, et al. Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES R. BRAND, 12 Plaintiff, 13 14 No. 2:16-cv-1811-MCE-EFB P v. ORDER AND FINDINGS AND RECOMMENDATIONS ANNE MARIE SCHUBERT, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding in forma pauperis without counsel in an action 17 18 brought under 42 U.S.C. § 1983. His initial complaint (ECF No. 1) was dismissed with leave to 19 amend. ECF No. 7. Plaintiff has filed an amended complaint (ECF No. 13) which is before the 20 court for screening. 21 I. 22 Screening Requirements The court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 25 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 27 28 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 Dockets.Justia.com 1 Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 2 meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona, 3 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute 4 on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 5 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, 6 has an arguable legal and factual basis. Id. 7 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 8 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 9 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 10 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 11 However, in order to survive dismissal for failure to state a claim, a complaint must contain more 12 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 13 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations 14 omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that 15 merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) 16 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, 1216 (3d 17 ed. 2004)). 18 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 19 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 20 Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content 21 that allows the court to draw the reasonable inference that the defendant is liable for the 22 misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint 23 under this standard, the court must accept as true the allegations of the complaint in question, 24 Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading 25 in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 26 McKeithen, 395 U.S. 411, 421 (1969). 27 ///// 28 ///// 2 1 II. 2 Screening Order Plaintiff alleges that, on April 27, 2015, deputy district attorney Scott Schweibish made 3 false statements in court. ECF No. 13 at 1-2. He claims that Schweibish made these statements 4 during an ex-parte proceeding and in connection with a declaration of probable cause used to 5 support a hold on plaintiff’s bail release. Id. at 2. Plaintiff alleges this false testimony deprived 6 him of his liberty interest in posting bail. Id. at 4. 7 These allegations do not state a cognizable claim. Prosecutors are absolutely immune 8 from civil suits for damages under § 1983 which challenge activities related to the initiation and 9 presentation of criminal prosecutions. Imbler v. Pachtman, 424 U.S. 409, 427-28 (1976). This 10 extends to prosecutorial conduct during bail proceedings. See Buckley v. Fitzsimmons, 509 U.S. 11 259, 273 (1993) (“We have not retreated, however, from the principle that acts undertaken by a 12 prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in 13 the course of his role as an advocate for the State, are entitled to the protections of absolute 14 immunity.”). Further, assuming that Schweibish acted as a witness during the relevant 15 proceeding, he is protected by the Supreme Court’s holding in Briscoe v. Lahue, wherein it 16 emphasized that testifying government officials – like police officers and prosecutors – were 17 protected from section 1983 liability based on their witness testimony. 460 U.S. 325, 342-343 18 (1983) (“Subjecting government officials, such as police officers, to damages liability under 19 § 1983 for their testimony might undermine not only their contribution to the judicial process but 20 also the effective performance of their other public duties.”). 21 The court notes that the caption of the complaint indicates the existence of other 22 defendants, namely “John Does 1-100”, but there are no explicit allegations against any Doe 23 defendants in the body of the complaint. 24 III. 25 Leave to Amend This is plaintiff’s second complaint and he is no closer to identifying a cognizable claim 26 upon which this action might proceed. Indeed, the only defendant explicitly mentioned in the 27 amended complaint is, as noted above, immune from suit under section 1983. Accordingly, the 28 court finds that granting further leave to amend would be futile. Plumeau v. School Dist. # 40, 3 1 130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend appropriate where further 2 amendment would be futile). 3 IV. 4 Conclusion Accordingly, it is hereby ORDERED that the previous findings and recommendations 5 (ECF No. 10) are VACATED and it is hereby RECOMMENDED that this action be dismissed 6 with prejudice. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 12 within the specified time may waive the right to appeal the District Court’s order. Turner v. 13 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 DATED: May 1, 2018. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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