(PC) Foster v. Colombo, No. 2:2021cv00576 - Document 12 (E.D. Cal. 2021)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 10/18/21 GRANTING 7 Motion to Proceed IFP. The clerk of court assign a District Judge to this action. Also, RECOMMENDING that plaintiff's complaint 1 be dismissed without leave to amend. The clerk of court be directed to close the case. Assigned and referred to Judge John A. Mendez. Objections due within 14 days.(Plummer, M)

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(PC) Foster v. Colombo Doc. 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARTIN LEE FOSTER, 12 13 14 15 Plaintiff, v. STEPHEN COLOMBO, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS ECF No. 7 16 FINDINGS AND RECOMMENDATION THAT PLAINTIFF’S COMPLAINT BE DISMISSED WITHOUT LEAVE TO AMEND 17 ECF No. 1 18 OBJECTIONS DUE WITHIN FOURTEEN DAYS 19 Defendant. Case No. 2:21-cv-00576-JDP (PC) 20 21 Plaintiff, a county inmate proceeding pro se, has filed this civil rights action seeking relief 22 under 42 U.S.C. § 1983. He alleges that he was involved in an altercation in July 2020 that 23 resulted in his arrest by the Sacramento County Police Department. He asks this court to order 24 his release, contending that there is insufficient evidence to support the criminal charges brought 25 against him. Because this court is not permitted to interfere with plaintiff’s ongoing state 26 criminal proceedings, I recommend the complaint be dismissed without leave to amend. I also 27 grant plaintiff’s motion to proceed in forma pauperis. 28 1 Dockets.Justia.com Screening and Pleading Requirements 1 2 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 3 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 4 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 5 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 6 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 7 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 8 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 9 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 10 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 11 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 12 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 13 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 14 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 15 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 16 n.2 (9th Cir. 2006) (en banc) (citations omitted). 17 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 18 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 19 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 20 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 21 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 22 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 23 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). Analysis 24 25 26 27 28 Plaintiff’s allegations demonstrate that he is attempting to challenge his ongoing state criminal proceedings. ECF No. 1.1 In Younger v. Harris, 401 U.S. 37, 44 (1971), the Supreme 1 Several months after he commenced this action, plaintiff filed three documents—a “letter,” a “supplement to the complaint,” and a “notice regarding relief demand”—that contain 2 1 Court held that a federal court generally cannot interfere with pending state criminal proceedings. 2 This principle, referred to as the “Younger Abstention Doctrine,” is based on federal-state comity. 3 See id. Younger requires a district court to dismiss a federal action if the state proceedings: 4 (1) are ongoing, (2) implicate important state interests, and (3) provide plaintiff an adequate 5 opportunity to raise the federal issue. Columbia Basin Apartment Ass’n v. City of Pasco, 268 6 F.3d 791, 799 (9th Cir. 2001). These elements are satisfied here: plaintiff’s criminal proceeding 7 is ongoing, the proceeding implicates important state interests, and there is no indication that 8 plaintiff could not raise his federal claims in his criminal cases. Further, plaintiff does not allege 9 extraordinary circumstances warranting federal intervention. See Younger, 401 U.S. at 45. 10 Therefore, I recommend that this action be dismissed because plaintiff challenges aspects of an 11 ongoing state case that must be raised in the state proceedings. See id. at 46. 12 Furthermore, I note that plaintiff may not seek to be released from jail through a § 1983 13 action. “Federal law opens two main avenues to relief on complaints related to imprisonment: a 14 petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, 15 Rev. Stat. § 1979, as amended 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 16 (2004) (per curium). A habeas corpus petition, rather than a § 1983 claim, is the proper 17 mechanism for a prisoner to use to contest the legality or duration of his confinement. See 18 Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). 19 For the above-stated reasons, I recommend dismissing plaintiff’s complaint without leave 20 to amend. See Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009); Silva v. Di Vittorio, 658 21 F.3d 1090, 1105 (9th Cir. 2011) (“Dismissal of a pro se complaint without leave to amend is 22 proper only if it is absolutely clear that the deficiencies of the complaint could not be cured by 23 amendment.” (internal quotation marks omitted)). 24 25 Accordingly, it is hereby ORDERED that plaintiff’s request to proceed in forma pauperis, ECF No. 7, is granted. The clerk of court assign a District Judge to this action. 26 27 28 additional allegations. ECF Nos. 8, 9 & 10. Allegations raised outside the complaint generally will not be considered. Nevertheless, I have reviewed these documents, which indicate that plaintiff seeks to challenge his criminal proceedings. 3 1 Further, it is RECOMMENDED that: 2 1. Plaintiff’s complaint, ECF No. 1, be dismissed without leave to amend. 3 2. The Clerk of Court be directed to close the case. 4 I submit these findings and recommendations to the district judge under 28 U.S.C. 5 § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 6 Eastern District of California. The parties may, within 14 days of the service of the findings and 7 recommendations, file written objections to the findings and recommendations with the court. 8 Such objections should be captioned “Objections to Magistrate Judge’s Findings and 9 Recommendations.” The district judge will review the findings and recommendations under 28 10 U.S.C. § 636(b)(1)(C). 11 12 IT IS SO ORDERED. 13 Dated: 14 15 October 18, 2021 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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