(PC) Belyew v. Taylor et al, No. 2:2018cv00907 - Document 10 (E.D. Cal. 2019)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/8/2019 GRANTING plaintiff's 5 motion to proceed IFP and ORDERING the Clerk to randomly assign a US District Judge to this action. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. IT IS RECOMMENDED that the 1 complaint be dismissed without leave to amend for failure to state a claim. Assigned and referred to Judge John A. Mendez; Objections to F&R due within 21 days. (Yin, K)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LISA BELYEW, 12 Plaintiff, 13 14 No. 2:18-cv-0907 CKD P v. ORDER AND FINDINGS AND RECOMMENDATIONS MATT TAYLOR, et al., 15 Defendant. 16 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 17 18 19 20 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. I. Application to Proceed In Forma Pauperis Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). ECF No. 5. Accordingly, the request to proceed in forma pauperis will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 23 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 4 II. Statutory Screening of Prisoner Complaints The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 7 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 8 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 9 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 12 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 13 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 14 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 15 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 16 Franklin, 745 F.2d at 1227-28 (citations omitted). 17 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 18 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 19 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 20 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 22 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 23 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 24 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 25 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 26 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 27 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 28 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 2 1 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 2 3 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 4 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 5 content that allows the court to draw the reasonable inference that the defendant is liable for the 6 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 7 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 8 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976), as well as construe the pleading in the 9 light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 10 11 McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). III. Complaint 12 Plaintiff alleges various due process and speedy trial violations against attorneys Matt 13 Taylor and Jennifer Dupre-Tokos, as well as Judge Kimberly Merrifield. (ECF No. 1 at 2-8.) 14 She seeks punitive, compensatory, actual, and discretionary damages totaling one million dollars. 15 (Id. at 9.) 16 IV. 17 Failure to State a Claim A. Defendants Taylor and Dupre-Tokos 18 It is unclear whether defendants Taylor and Dupre-Tokos are prosecutors or public 19 defenders since plaintiff identifies them as deputy district attorneys at the public defender’s office 20 and then fails to identify them by name when making her allegations against them. (ECF No. 1 at 21 2-8.) However, in either case, the claims against them must fail. 22 If Taylor and Dupre-Tokos are prosecutors, then they are immune from suit because 23 prosecutors are absolutely immune from civil suits for damages under § 1983 which challenge the 24 initiation and presentation of criminal prosecutions. Imbler v. Pachtman, 424 U.S. 409, 431 25 (1976). “Thus, a prosecutor enjoys absolute immunity from a suit alleging that he maliciously 26 initiated a prosecution.” Genzler v. Longanbach, 410 F.3d 630, 637 (9th Cir. 2005) (citing 27 Imbler, 424 U.S. at 430); Lacey v. Maricopa County, 693 F.3d 986, 933 (9th Cir. 2012) 28 (prosecutor would have been entitled to absolute immunity even if he had “filed a baseless 3 1 information”). Plaintiff alleges various misconduct by the prosecutors in presenting her case in 2 the superior court. (ECF No. 1 at 3-8.) Such claims, even if true, are barred by absolute 3 prosecutorial immunity and must be dismissed. 4 If defendants Taylor and Dupre-Tokos are public defenders, the claims fail for a different 5 reason. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by 6 the Constitution and laws of the United States, and must show that the alleged deprivation was 7 committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) 8 (citations omitted). “[A] public defender does not act under color of state law when performing a 9 lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v. 10 Dodson, 454 U.S. 312, 325 (1981). Because plaintiff’s allegations about Taylor and Dupre- 11 Tokos are clearly about them acting in their capacity as attorneys during the course of her 12 criminal proceedings, if either defendant was plaintiff’s assigned public defender, they were not 13 acting under color of state law. This means that plaintiff cannot bring a claim against them under 14 § 1983. Furthermore, any potential claims for legal malpractice do not come within the 15 jurisdiction of the federal courts. Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). 16 17 For these reasons, the claims against Taylor and Dupre-Tokos should be dismissed without leave to amend regardless of whether they are prosecutors or public defenders. 18 B. Defendant Merrifield “It is well settled that judges are generally immune from suit for money damages.” 19 20 Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001) (citing Mireles v. Waco, 502 21 U.S. 9, 9-10 (1991)). “A judge will not be deprived of immunity because the action he took was 22 in error, was done maliciously, or was in excess of his authority; rather, he will be subject to 23 liability only when he has acted in the ‘clear absence of all jurisdiction.’” Stump v. Sparkman, 24 435 U.S. 349, 356-57 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351 (1871)). A 25 judge’s jurisdiction is quite broad and its scope is determined by the two-part test articulated in 26 Stump: 27 28 The relevant cases demonstrate that the factors determining whether an act by a judge is a “judicial” one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, 4 1 and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity. 2 3 Id. at 362. All of the alleged conduct by defendant Merrifield falls squarely within the scope of 4 5 functions “normally performed by a judge” and occurred while she was acting as a superior court 6 judge. (ECF No. 1 at 3-8 (alleging violations based on the denial of various motions and 7 unfavorable rulings issued by Merrifield).) Defendant Merrifield is therefore absolutely immune 8 from liability and the claims against her must be dismissed. 9 V. No Leave to Amend Leave to amend should be granted if it appears possible that the defects in the complaint 10 11 could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 12 (9th Cir. 2000) (en banc); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se 13 litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, 14 unless it is absolutely clear that the deficiencies of the complaint could not be cured by 15 amendment.” (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987))). However, if, after 16 careful consideration, it is clear that a complaint cannot be cured by amendment, the court may 17 dismiss without leave to amend. Cato, 70 F.3d at 1005-06. The undersigned finds that, as set forth above, the complaint fails to state a claim upon 18 19 which relief may be granted and that amendment would be futile. The complaint should therefore 20 be dismissed without leave to amend. 21 22 23 24 25 26 27 28 VI. Plain Language Summary of this Order for a Pro Se Litigant Your claims should be dismissed because even if they are true, the people you have sued are either immune or are not proper defendants under § 1983. Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a United States District Judge to this action. IT IS FURTHER RECOMMENDED that the complaint be dismissed without leave to amend for failure to state a claim. These findings and recommendations are submitted to the United States District Judge 5 1 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 2 after being served with these findings and recommendations, plaintiff may file written objections 3 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 4 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 5 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 6 (9th Cir. 1991). 7 Dated: April 8, 2019 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 8 9 10 11 AC/kw:bely0907.dismiss.f&r 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
