(PC) Belyew v. Merrifield, No. 2:2018cv00648 - Document 6 (E.D. Cal. 2018)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 6/27/2018 GRANTING plaintiff's 4 request to proceed IFP and plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. IT IS RECOMMENDED this action be dismissed pursuant to 28 U.S.C. § 1915A. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)
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(PC) Belyew v. Merrifield Doc. 6 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 LISA BELYEW, 11 No. 2:18-cv-0648-MCE-EFB P Plaintiff, 12 v. 13 KIMBERLY MERRIFIELD, 14 ORDER GRANTING IFP AND FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION PURSUANT TO 28 U.S.C. § 1915A Defendant. 15 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 16 17 U.S.C. § 1983. She has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. 18 § 1915. 19 I. Request to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 20 21 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 22 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 23 § 1915(b)(1) and (2). 24 II. Screening Requirement and Standards 25 Federal courts must engage in a preliminary screening of cases in which prisoners seek 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 28 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 1 Dockets.Justia.com 1 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 2 relief.” Id. § 1915A(b). 3 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 4 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 5 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 6 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 8 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 9 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 10 U.S. 662, 679 (2009). 11 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 12 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 13 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 14 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 15 678. 16 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 17 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 18 content that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 20 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 21 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 22 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 23 III. 24 Screening Order Plaintiff was a defendant in a state court criminal proceeding. She alleges that a Butte 25 County Superior Court Judge deprived her of a fair trial in violation of her right to due process. 26 ECF No. 1 at 2-4. She seeks damages and asks that the judge be “recus[ed] from the bench!” Id. 27 at 6. The defendant judge, however, is immune from plaintiff’s suit because the claims against 28 her are based on acts performed in her capacity as a judge. See Ashelman v. Pope, 793 F.2d 1072, 2 1 1078 (1986) (holding that “a conspiracy between judge and prosecutor to predetermine the 2 outcome of a judicial proceeding, while clearly improper, nevertheless does not pierce the 3 immunity extended to judges and prosecutors”). Immunity aside, plaintiff’s claim is barred by 4 Heck v. Humphrey, 512 U.S. 477, (1994). Heck holds that if success in a section 1983 action 5 would implicitly question the validity of confinement or its duration, the plaintiff must first show 6 that the underlying conviction was reversed on direct appeal, expunged by executive order, 7 declared invalid by a state tribunal, or questioned by the grant of a writ of habeas corpus. 8 Muhammad v. Close, 540 U.S. 749, 751 (2004). If plaintiff were to succeed on her due process 9 claim, it would call into question the validity of her conviction and confinement. As a general 10 rule, a challenge in federal court to the fact of conviction or the length of confinement must be 11 raised in a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Preiser v. 12 Rodriguez, 411 U.S. 475 (1973). 13 For these reasons, plaintiff’s complaint must be dismissed without leave to amend. See 14 Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009); Silva v. Di Vittorio, 658 F.3d 1090, 1105 15 (9th Cir. 2011) (“Dismissal of a pro se complaint without leave to amend is proper only if it is 16 absolutely clear that the deficiencies of the complaint could not be cured by amendment.” 17 (internal quotation marks omitted)); Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A] 18 district court should grant leave to amend even if no request to amend the pleading was made, 19 unless it determines that the pleading could not be cured by the allegation of other facts.”). 20 Accordingly, IT IS ORDERED that: 21 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 4) is granted. 22 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 23 in accordance with the notice to the California Department of Corrections and 24 Rehabilitation filed concurrently herewith. 25 26 Further, IT IS RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. § 1915A. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 3 1 after being served with these findings and recommendations, any party may file written 2 objections with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 4 within the specified time may waive the right to appeal the District Court’s order. Turner v. 5 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 DATED: June 27, 2018. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4