(PC) Turner v. Rosenfeld et al, No. 2:2018cv02796 - Document 6 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 11/2/18 RECOMMENDING that this action be dismissed for failure to state a claim. Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Coll, A)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY DEWAYNE LEE TURNER, 12 13 14 15 No. 2:18-CV-2796-TLN-DMC-P Plaintiff, v. FINDINGS AND RECOMMENDATIONS KENNETH LLOYD ROSENFELD, et al., Defendants. 16 17 18 19 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s complaint (Doc. 1). The court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 26 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 27 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 28 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 1 1 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege 2 with at least some degree of particularity overt acts by specific defendants which support the 3 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 4 impossible for the court to conduct the screening required by law when the allegations are vague 5 and conclusory. 6 7 8 9 I. PLAINTIFF’S ALLEGATIONS Plaintiff names the following as defendants: (1) Kenneth Lloyd Rosenfeld, plaintiff’s criminal defense attorney; and (2) the Sacramento County Superior Court. Plaintiff 10 claims defendant Rosenfeld “acted as Judge, DA, attorney, Jury, and Convictioner” in his 11 criminal case over 30 years ago. Doc. 1, p. 3. According to plaintiff, defendant Rosenfeld “kept 12 pushing the court that I was guilty” despite his innocence. Id. 13 14 15 II. DISCUSSION When a state prisoner challenges the legality of his custody and the relief he seeks 16 is a determination that he is entitled to an earlier or immediate release, such a challenge is not 17 cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal remedy is a petition for a writ 18 of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda, 19 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 20 1995) (per curiam). Thus, where a § 1983 action seeking monetary damages or declaratory relief 21 alleges constitutional violations which would necessarily imply the invalidity of the prisoner’s 22 underlying conviction or sentence, or the result of a prison disciplinary hearing resulting in 23 imposition of a sanction affecting the overall length of confinement, such a claim is not 24 cognizable under § 1983 unless the conviction or sentence has first been invalidated on appeal, by 25 habeas petition, or through some similar proceeding. See Heck v. Humphrey, 512 U.S. 477, 483- 26 84 (1994) (concluding that § 1983 claim not cognizable because allegations were akin to 27 malicious prosecution action which includes as an element a finding that the criminal proceeding 28 was concluded in plaintiff’s favor); Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir. 1997) 2 1 (concluding that § 1983 claim not cognizable because allegations of procedural defects were an 2 attempt to challenge substantive result in parole hearing); cf. Neal, 131 F.3d at 824 (concluding 3 that § 1983 claim was cognizable because challenge was to conditions for parole eligibility and 4 not to any particular parole determination); cf. Wilkinson v. Dotson, 544 U.S. 74 (2005) 5 (concluding that § 1983 action seeking changes in procedures for determining when an inmate is 6 eligible for parole consideration not barred because changed procedures would hasten future 7 parole consideration and not affect any earlier parole determination under the prior procedures). 8 9 In this case, success on the merits of plaintiff’s claim against defendant Rosenfeld would necessarily imply the invalidity of his underlying criminal conviction because it would 10 mean plaintiff received ineffective assistance of counsel, and plaintiff has not alleged the 11 underling criminal conviction has been invalidated or otherwise set aside. Plaintiff’s claim is, 12 therefore, not cognizable under § 1983. 13 14 15 III. CONCLUSION Because it does not appear possible that the deficiencies identified herein can be 16 cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of 17 the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 18 19 Based on the foregoing, the undersigned recommends that this action be dismissed for failure to state a claim. 20 These findings and recommendations are submitted to the United States District 21 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 22 after being served with these findings and recommendations, any party may file written 23 objections with the court. Responses to objections shall be filed within 14 days after service of 24 objections. Failure to file objections within the specified time may waive the right to appeal. See 25 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 26 Dated: November 2, 2018 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 27 28 3

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