-WVG Combs v. Pasto et al, No. 3:2011cv01412 - Document 3 (S.D. Cal. 2011)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis; and Dismissing Action Without Prejudice for Failing to State a Claim. It is hereby ordered that Plaintiff's complaint is dismissed without prejudice, however, plaintiff is granted 45 days leave in order to file a First Amended Complaint. Signed by Judge Michael M. Anello on 7/15/2011. (cc: Watch Commanderat San Diego Central Jail) (1983 Form Mailed to Plaintiff) (All non-registered users served via U.S. Mail Service)(leh)
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-WVG Combs v. Pasto et al Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JOHN LELAND COMBS, Inmate Booking No. 11109312, Civil No. Plaintiff, 13 14 vs. 15 16 17 11cv1412 MMA (WVG) (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, IMPOSING NO INITIAL PARTIAL FILING FEE AND GARNISHING $350.00 BALANCE FROM INMATE’S TRUST ACCOUNT; and (2) DISMISSING ACTION WITHOUT PREJUDICE FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b) JAMES PASTO; STAN JONES; SAN DIEGO PUBLIC DEFENDER’S OFFICE; CITY OF SAN DIEGO, 18 Defendants. 19 20 21 22 John Leland Combs (“Plaintiff”), an inmate currently incarcerated at the San Diego 23 Central Jail located in San Diego, California, and proceeding pro se, has submitted a civil rights 24 Complaint pursuant to 28 U.S.C. § 1983. In addition, Plaintiff has filed a Motion to Proceed In 25 Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF No. 2]. 26 /// 27 /// 28 /// -1- 11cv1412 MMA (WVG) Dockets.Justia.com 1 I. Motion to Proceed IFP [ECF No. 2] 2 All parties instituting any civil action, suit or proceeding in a district court of the United 3 States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 4 U.S.C. § 1914(a). An action may proceed despite a party’s failure to prepay the entire fee only 5 if that party is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. 6 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to proceed IFP however, 7 remain obligated to pay the entire fee in installments, regardless of whether their action is 8 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 9 (9th Cir. 2002). 10 The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C. 11 § 1915(a)(1), and that he has attached a certified copy of his trust account statement pursuant to 12 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIV. L.R. 3.2. Plaintiff’s trust account statement indicates 13 that he has insufficient funds from which to pay filing fees at this time. See 28 U.S.C. 14 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil 15 action or appealing a civil action or criminal judgment for the reason that the prisoner has no 16 assets and no means by which to pay the initial partial filing fee.”). Therefore, the Court 17 GRANTS Plaintiff’s Motion to Proceed IFP [ECF No. 2] and assesses no initial partial filing 18 fee per 28 U.S.C. § 1915(b)(1). However, the entire $350 balance of the filing fees mandated 19 shall be collected and forwarded to the Clerk of the Court pursuant to the installment payment 20 provisions set forth in 28 U.S.C. § 1915(b)(1). 21 II. Sua Sponte Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 22 Notwithstanding payment of any filing fee or portion thereof, the Prison Litigation 23 Reform Act (“PLRA”) requires courts to review complaints filed by prisoners against officers 24 or employees of governmental entities and dismiss those or any portion of those found frivolous, 25 malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief 26 from a defendant immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez 27 v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 28 F.3d 443, 446 (9th Cir. 2000) (§ 1915A). -2- 11cv1412 MMA (WVG) 1 Prior to the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only 2 frivolous and malicious claims. Lopez, 203 F.3d at 1126, 1130. However 28 U.S.C. 3 §§ 1915(e)(2) and 1915A now mandate that the court reviewing a prisoner’s suit make and rule 4 on its own motion to dismiss before directing that the complaint be served by the U.S. Marshal 5 pursuant to FED. R. CIV. P. 4(c)(2). Id. at 1127 (“[S]ection 1915(e) not only permits, but requires 6 a district court to dismiss an in forma pauperis complaint that fails to state a claim.”); Barren v. 7 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). The district court should grant leave to 8 amend, however, unless it determines that “the pleading could not possibly be cured by the 9 allegation of other facts” and if it appears “at all possible that the plaintiff can correct the 10 defect.” Lopez, 203 F.3d at 1130-31 (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 11 1995); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 701 (9th Cir. 1990)). 12 “[W]hen determining whether a complaint states a claim, a court must accept as true all 13 allegations of material fact and must construe those facts in the light most favorable to the 14 plaintiff.” Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) 15 “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). However, while liberal 16 construction is “particularly important in civil rights cases,” Ferdik v. Bonzelet, 963 F.2d 1258, 17 1261 (9th Cir. 1992), the court may nevertheless not “supply essential elements of the claim that 18 were not initially pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 19 (9th Cir. 1982). 20 As currently pled, Plaintiff’s Complaint fails to state a cognizable claim under 42 U.S.C. 21 § 1983. Section 1983 imposes two essential proof requirements upon a claimant: (1) that a 22 person acting under color of state law committed the conduct at issue, and (2) that the conduct 23 deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws 24 of the United States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), 25 overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); Haygood v. 26 Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). 27 Plaintiff names as Defendants James Pasto and Stan Jones, attorneys appointed to 28 represent him during his criminal proceedings. However, a person “acts under color of state law -3- 11cv1412 MMA (WVG) 1 [for purposes of § 1983] only when exercising power ‘possessed by virtue of state law and made 2 possible only because the wrongdoer is clothed with the authority of state law.’” Polk County 3 v. Dodson, 454 U.S. 312, 317-18 (1981) (quoting United States v. Classic, 313 U.S. 299, 326 4 (1941)). Attorneys appointed to represent a criminal defendant during trial, do not generally act 5 under color of state law because representing a client “is essentially a private function . . . for 6 which state office and authority are not needed.” Polk County, 454 U.S. at 319; United States 7 v. De Gross, 960 F.2d 1433, 1442 n.12 (9th Cir. 1992). Thus, when publicly appointed counsel 8 are performing as advocates, i.e., meeting with clients, investigating possible defenses, 9 presenting evidence at trial and arguing to the jury, they do not act under color of state law for 10 section 1983 purposes. See Georgia v. McCollum, 505 U.S. 42, 53 (1992); Polk County, 454 11 U.S. at 320-25; Miranda v. Clark County, 319 F.3d 465, 468 (9th Cir. 2003) (en banc) (finding 12 that public defender was not a state actor subject to suit under § 1983 because, so long as he 13 performs a traditional role of an attorney for a client, “his function,” no matter how ineffective, 14 is “to represent his client, not the interests of the state or county.”). 15 Accordingly, Plaintiff’s claims against Pasto and Jones must be dismissed for failing to 16 state a claim upon which section 1983 relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii) 17 & 1915A(b); Lopez, 203 F.3d at 1126-27; Resnick, 213 F.3d at 446. 18 Moreover, to the extent Plaintiff seeks damages under 42 U.S.C. § 1983 based on the 19 alleged ineffectiveness of his trial counsel, his claim amounts to an attack on the validity of his 20 underlying criminal proceedings, and as such, is not cognizable under 42 U.S.C. § 1983 unless 21 and until he can show that the conviction has already been invalidated. Heck v. Humphrey, 512 22 U.S. 477, 486-87 (1994); Ramirez v. Galaza, 334 F.3d 850, 855-56 (9th Cir. 2003) (“Absent 23 such a showing, ‘[e]ven a prisoner who has fully exhausted available state remedies has no cause 24 of action under § 1983 . . . .’”) (quoting Heck, 512 U.S. at 489), cert. denied, 124 S. Ct. 2388 25 (2004). 26 Heck holds that “in order to recover damages for allegedly unconstitutional conviction 27 or imprisonment, or for other harm caused by actions whose unlawfulness would render a 28 conviction or sentence invalid, a section 1983 plaintiff must prove that the conviction or -4- 11cv1412 MMA (WVG) 1 sentence has been reversed on direct appeal, expunged by executive order, declared invalid by 2 a state tribunal authorized to make such determination, or called into question by a federal 3 court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-87. A claim challenging the 4 legality of a conviction or sentence that has not been so invalidated is not cognizable under § 5 1983. Id. at 487; Edwards v. Balisok, 520 U.S. 641, 643 (1997). 6 In Heck, the Supreme Court held that: 11 when a state prisoner seeks damages in a section 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed. 12 Heck, 512 U.S. at 487 (emphasis added). An action that is barred by Heck should be dismissed 13 for failure to state a claim without prejudice to Plaintiff’s right to file a new action if he succeeds 14 in invalidating his conviction. Edwards, 520 U.S. at 649. 7 8 9 10 15 Here, Plaintiff’s ineffective assistance of counsel claims against Pasto and Jones 16 “necessarily imply the invalidity” of his criminal proceedings and continuing incarceration. 17 Heck, 512 U.S. at 487. Were Plaintiff to succeed in showing that Pasto and Jones rendered 18 ineffective assistance of counsel, an award of damages would “necessarily imply the invalidity” 19 of his conviction. Id.; see also Strickland v. Washington, 466 U.S. 668, 688 (1984) (to succeed 20 on ineffective assistance claim petitioner must show that counsel’s performance fell below 21 objective standard of reasonableness and that but for counsel’s errors the result of the trial would 22 have been different); Lozada v. Deeds, 964 F.2d 956, 958-59 (9th Cir. 1992) (remedy for 23 ineffective assistance of counsel is a conditional writ granting petitioner’s release unless state 24 retries him or allows him to pursue an appeal with the assistance of counsel within a reasonable 25 time). Thus, because Plaintiff seeks damages for an allegedly unconstitutional criminal 26 proceedings in a criminal case, and because he has not alleged that his conviction has already 27 been invalidated, a section 1983 claim for damages has not yet accrued. See Heck, 512 U.S. at 28 489-90. -5- 11cv1412 MMA (WVG) 1 Plaintiff also names the San Diego Public Defender’s Office as a Defendant in this matter. 2 An agency or department of a municipal entity is not a proper defendant under § 1983. Vance 3 v. County of Santa Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996). Rather, the county or city 4 itself is the proper defendant. See Id. “[A] municipality cannot be held liable solely because it 5 employs a tortfeasor – or, in other words, a municipality cannot be held liable under § 1983 on 6 a respondeat superior theory.” Monell v. Department of Social Services, 436 U.S. 658, 691 7 (1978). A municipality may be liable under § 1983 for monetary, declaratory, or injunctive 8 relief where the constitutional deprivation was caused by the implementation or execution of “a 9 policy statement, ordinance, regulation, or decision officially adopted and promulgated by that 10 body’s officers.” Monell, 436 U.S. at 690; Board of the County Commissioners v. Brown, 520 11 U.S. 397, 117 S. Ct. 1382, 1388 (1997); Navarro v. Block, 72 F.3d 712, 714 (9th Cir. 1995). 12 To establish municipal liability, plaintiff must show: (1) he was deprived of a 13 constitutional right; (2) the city had a policy; (3) the policy amounted to deliberate indifference 14 to plaintiff's constitutional right; and (4) the policy was the “moving force behind the 15 constitutional violation.” Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996); see 16 Board of the County Commissioners v. Brown, 520 U.S. 397, 117 S. Ct. at 1388; Trevino v. 17 Gates, 99 F.3d 911, 918 (9th Cir. 1996). Thus, in order to state a § 1983 claim against the City 18 of San Diego, Plaintiff must allege facts showing that his injury was caused by individual 19 officers whose conduct conformed to an official city policy, custom or practice. See Karim- 20 Panahi, 839 F.2d at 624. 21 Therefore, the Court finds that Plaintiff has not stated a § 1983 claim against the City of 22 San Diego because he has failed to allege that any individual police officer’s conduct conformed 23 to an official city policy, custom or practice. 24 For all these reasons, the Court finds that Plaintiff’s Complaint must be dismissed sua 25 sponte for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. 26 §§ 1915(e)(2)(B) and 1915A(b). 27 /// 28 /// -6- 11cv1412 MMA (WVG) 1 III. CONCLUSION AND ORDER 2 Good cause appearing, IT IS HEREBY ORDERED: 3 1. 4 5 Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is GRANTED. 2. The Secretary of California Department of Corrections and Rehabilitation, or his 6 designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee 7 owed in this case by collecting monthly payments from the account in an amount equal to twenty 8 percent (20%) of the preceding month’s income and forward payments to the Clerk of the Court 9 each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). 10 ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 11 ASSIGNED TO THIS ACTION. 12 13 3. The Clerk of the Court is directed to serve a copy of this Order on Watch Commander, San Diego Central Jail, 1173 Front Street, San Diego, California, 92101. 14 IT IS FURTHER ORDERED that: 15 4. Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C. 16 §§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave 17 from the date this Order is “Filed” in which to file a First Amended Complaint which cures all 18 the deficiencies of pleading noted above. Plaintiff’s Amended Complaint must be complete in 19 itself without reference to the superseded pleading. See S.D. Cal. Civ. L.R. 15.1. Defendants 20 not named and all claims not re-alleged in the Amended Complaint will be deemed to have been 21 waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). 22 5. 23 IT IS SO ORDERED. 24 25 26 The Clerk is directed to mail a court approved § 1983 complaint form to Plaintiff. DATED: July 15, 2011 Hon. Michael M. Anello United States District Judge 27 28 -7- 11cv1412 MMA (WVG)
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