Rider v. Carter et al, No. 3:2009cv02316 - Document 3 (S.D. Cal. 2009)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis and Sua Sponte Dismissing Complaint: Plaintiffs Complaint is DISMISSED without prejudice. However, Plaintiff is GRANTED forty five (45) days leave from the date this Order is filed in w hich to file a First Amended Complaint. The Clerk of Court is directed to mail a court approved § 1983 form complaint to Plaintiff. (Order electronically transmitted to Matthew Cate, Secretary CDCR) Signed by Judge M. James Lorenz on 12/4/2009. (All non-registered users served via U.S. Mail Service)(mjj) Modified on 12/4/2009 - sent 1983 form to petitioner vis U.S. Mail Service (mjj) (kaj).
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Rider v. Carter et al Doc. 3 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 CHRISTOPHER SCOTT RIDER, CDCR #P-96108, Plaintiff, 13 14 Civil No. ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, [Doc. No. 2]; vs. 15 16 (2) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM AND FOR SEEKING MONETARY DAMAGES AGAINST IMMUNE DEFENDANTS PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A HAROLD D. CARTER, et al., 17 18 09-2316 L (WMc) Defendants. 19 20 Christopher Scott Rider (“Plaintiff”), a state inmate currently incarcerated in High Desert 21 State Prison located in Susanville, California and proceeding pro se, has filed a civil rights 22 action filed pursuant to 42 U.S.C. § 1983. Plaintiff has not prepaid the $350 filing fee mandated 23 by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) 24 pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. 25 I. 26 MOTION TO PROCEED IFP 27 All parties instituting any civil action, suit or proceeding in a district court of the United 28 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 K:\COMMON\EVERYONE\_EFILE-PROSE\L\09cv2316-grant IFP & dismiss.wpd -1- 09cv2316 L (WMc) Dockets.Justia.com 1 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee 2 only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. 3 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed IFP 4 remains obligated to pay the entire fee in installments, regardless of whether his action is 5 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 6 (9th Cir. 2002). 7 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a 8 prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account 9 statement (or institutional equivalent) for the prisoner for the six-month period immediately 10 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 11 1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial 12 payment of 20% of (a) the average monthly deposits in the account for the past six months, or 13 (b) the average monthly balance in the account for the past six months, whichever is greater, 14 unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The 15 institution having custody of the prisoner must collect subsequent payments, assessed at 20% 16 of the preceding month’s income, in any month in which the prisoner’s account exceeds $10, and 17 forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 18 § 1915(b)(2). 19 The Court finds that Plaintiff has submitted a certified copy of his trust account statement 20 pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Andrews, 398 F.3d at 1119. 21 Plaintiff’s trust account statement shows he has insufficient funds with which to pay any initial 22 partial filing fee. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 23 prohibited from bringing a civil action or appealing a civil action or criminal judgment for the 24 reason that the prisoner has no assets and no means by which to pay [an] initial partial filing 25 fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 26 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack 27 of funds available.”). 28 K:\COMMON\EVERYONE\_EFILE-PROSE\L\09cv2316-grant IFP & dismiss.wpd -2- 09cv2316 L (WMc) 1 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP [Doc. No. 2], and 2 assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 3 balance of the filing fees mandated shall be collected and forwarded to the Clerk of the Court 4 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 5 II. 6 SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 7 The PLRA also obligates the Court to review complaints filed by all persons proceeding 8 IFP and by those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused 9 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 10 conditions of parole, probation, pretrial release, or diversionary program,” “as soon as 11 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 12 provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, 13 which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who 14 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126- 15 27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) 16 (§ 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing 17 § 1915A). 18 “[W]hen determining whether a complaint states a claim, a court must accept as true all 19 allegations of material fact and must construe those facts in the light most favorable to the 20 plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) 21 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). In addition, the Court’s 22 duty to liberally construe a pro se’s pleadings, see Karim-Panahi v. Los Angeles Police Dept., 23 839 F.2d 621, 623 (9th Cir. 1988), is “particularly important in civil rights cases.” Ferdik v. 24 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a 25 pro se civil rights complaint, the court may not “supply essential elements of claims that were 26 not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th 27 Cir. 1982). “Vague and conclusory allegations of official participation in civil rights violations 28 are not sufficient to withstand a motion to dismiss.” Id. K:\COMMON\EVERYONE\_EFILE-PROSE\L\09cv2316-grant IFP & dismiss.wpd -3- 09cv2316 L (WMc) 1 Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person 2 acting under color of state law committed the conduct at issue, and (2) that the conduct deprived 3 the claimant of some right, privilege, or immunity protected by the Constitution or laws of the 4 United States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on 5 other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); Haygood v. Younger, 769 F.2d 6 1350, 1354 (9th Cir. 1985) (en banc). 7 A. Heck Bar 8 In his Complaint, Plaintiff alleges that his rights were violated when he was falsely 9 arrested and ultimately convicted of several crimes resulting in his current “false imprisonment.” 10 See Compl. at 6-8. However, these claims amount to an attack on the constitutional validity of 11 Plaintiff’s criminal proceeding, and as such, may not be maintained pursuant to 42 U.S.C. 12 § 1983 unless and until he can show that his criminal conviction has already been invalidated. 13 Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). 14 “In any § 1983 action, the first question is whether § 1983 is the appropriate avenue to 15 remedy the alleged wrong.” Haygood v. Younger, 769 F.2d 1350, 1353 (9th Cir. 1985) (en 16 banc). A prisoner in state custody simply may not use a § 1983 civil rights action to challenge 17 the “fact or duration of his confinement.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). The 18 prisoner must seek federal habeas corpus relief instead. Wilkinson v. Dotson, 544 U.S. 74, 78 19 (2005) (quoting Preiser, 411 U.S. at 489). Thus, Plaintiff’s § 1983 action “is barred (absent 20 prior invalidation)--no matter the relief sought (damages or equitable relief), no matter the target 21 of his suit (state conduct leading to conviction or internal prison proceedings)--if success in that 22 action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson, 23 544 U.S. at 82. 24 In this case, Plaintiff’s claims “necessarily imply the invalidity” of his criminal 25 conviction. Heck, 512 U.S. at 487. In creating the favorable termination rule in Heck, the 26 Supreme Court relied on “the hoary principle that civil tort actions are not appropriate vehicles 27 for challenging the validity of outstanding criminal judgments.” Heck, 511 U.S. at 486. This 28 is precisely what Plaintiff attempts to accomplish here. Therefore, to satisfy Heck’s “favorable K:\COMMON\EVERYONE\_EFILE-PROSE\L\09cv2316-grant IFP & dismiss.wpd -4- 09cv2316 L (WMc) 1 termination” rule, Plaintiff must first allege facts which show that the conviction which forms 2 the basis of his § 1983 Complaint has already been: (1) reversed on direct appeal; (2) expunged 3 by executive order; (3) declared invalid by a state tribunal authorized to make such a 4 determination; or (4) called into question by the grant of a writ of habeas corpus. Heck, 512 U.S. 5 at 487 (emphasis added); see also Butterfield v. Bail, 120 F.3d 1023, 1025 (9th Cir. 1997). 6 Plaintiff’s Complaint alleges no facts sufficient to satisfy Heck. Thus, a suit for money 7 damages based on his criminal conviction is not yet cognizable. Accordingly, because Plaintiff 8 seeks damages for allegedly unconstitutional criminal proceedings, and because he has not 9 shown that his conviction has been invalidated, either by way of direct appeal, state habeas or 10 pursuant to 28 U.S.C. § 2254, a section 1983 claim for damages cannot be maintained, see Heck, 11 512 U.S. at 489-90, and his Complaint must be dismissed without prejudice. See Trimble v. City 12 of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (finding that an action barred by Heck has not 13 yet accrued and thus, must be dismissed without prejudice so that the plaintiff may reassert his 14 § 1983 claims if he ever succeeds in invalidating the underlying conviction or sentence); accord 15 Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997). 16 B. Absolute Immunity 17 In addition, Plaintiff’s claims against Deputy District Attorneys Gilbert Otero and Debra 18 Owen must be dismissed for seeking monetary damages against immune defendants. Criminal 19 prosecutors are absolutely immune from civil damages suits premised upon acts committed 20 within the scope of their official duties which are “intimately associated with the judicial phase 21 of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976); see also Buckley v. 22 Fitzsimmons, 509 U.S. 259, 272-73 (1993); Burns v. Reed, 500 U.S. 478, 487-93 (1991). A 23 prosecutor is immune even when the prosecutor’s malicious or dishonest action deprived the 24 defendant of his or her liberty. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). 25 In addition, to the extent Plaintiff seeks damages under § 1983 against Superior Court 26 Judge Matias Contreas, he is also entitled to absolute judicial immunity. See Stump v. 27 Sparkman, 435 U.S. 349, 359 (1978) (noting the longstanding rule that “[a] judge is absolutely 28 immune from liability for his judicial acts even if his exercise of authority is flawed by the K:\COMMON\EVERYONE\_EFILE-PROSE\L\09cv2316-grant IFP & dismiss.wpd -5- 09cv2316 L (WMc) 1 commission of grave procedural errors.”); Ashelman, 793 F.2d at 1075 (“Judges and those 2 performing judge-like functions are absolutely immune from damage liability for acts performed 3 in their official capacities.”). 4 Finally, to the extent that Plaintiff seeks monetary damages from the Defendants who 5 were witnesses at his trial for allegedly committing perjury, these Defendants are absolutely 6 immune. See 28 U.S.C. § 1915(e)(2)(b)(iii); § 1915A(b)(2). “Witnesses, including police 7 witnesses, are immune from liability for their testimony in earlier proceedings even if they 8 committed perjury.” Paine v. City of Lompoc, 965 F.3d 975, 981 (9th Cir. 2001) (citing Briscoe 9 v. LaHue, 460 U.S. 325, 345 (1983)). “Witness immunity also extends to conspiracies to commit 10 perjury.” Id. (citing Franklin v. Terr, 201 F.3d 1098, 1101-02 (9th Cir. 2000). See also Burns 11 v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) (witnesses are absolutely immune from 12 suits for damages under 42 U.S.C. § 1983 for testimony given at trial, or for testimony given 13 during adversarial pretrial proceedings); Demoran v. Witt, 781 F.2d 155, 157-58 (9th Cir. 1986). 14 Thus, Plaintiff’s claims against all the named Defendants are dismissed pursuant to 28 15 U.S.C. § 1915(e)(2)(B)(iii) for seeking monetary relief against defendants who are immune 16 from such relief. 17 The Court finds that Plaintiff’s Complaint must be dismissed sua sponte for seeking 18 monetary damages against immune defendants and for failing to state a claim upon which relief 19 could be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B). See Lopez, 203 F.3d at 1126-27. 20 IV. 21 CONCLUSION AND ORDER 22 Good cause appearing therefor, IT IS HEREBY ORDERED that: 23 1. 24 is GRANTED. Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2] 25 IT IS FURTHER ORDERED that: 26 2. Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. 27 §§ 1915(e)(2)(b) & 1915A. However, Plaintiff is GRANTED forty five (45) days leave from 28 the date this Order is filed in which to file a First Amended Complaint which cures all the K:\COMMON\EVERYONE\_EFILE-PROSE\L\09cv2316-grant IFP & dismiss.wpd -6- 09cv2316 L (WMc) 1 deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be complete in itself 2 without reference to the superseded pleading. See S.D. CAL. CIVLR 15.1. Defendants not 3 named and all claims not re-alleged in the Amended Complaint will be considered waived. See 4 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended Complaint 5 fails to state a claim upon which relief may be granted, it may be dismissed without further 6 leave to amend and may hereafter be counted as a “strike” under 28 U.S.C. § 1915(g). See 7 McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996). 8 3. 9 Plaintiff. The Clerk of Court is directed to mail a court approved § 1983 form complaint to 10 11 DATED: December 4, 2009 12 M. James Lorenz United States District Court Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K:\COMMON\EVERYONE\_EFILE-PROSE\L\09cv2316-grant IFP & dismiss.wpd -7- 09cv2316 L (WMc)
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