Forte v. County of Merced et al
Filing
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Response to Plaintiff's request for intervention and ORDER requiring defendants update status of criminal proceedings in Superior Court, signed by District Judge Anthony W. Ishii on 3/25/2013. ( Status of Criminal Proceedings Deadline: 4/12/2013)(Figueroa, O)
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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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EUGENE FORTE
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Plaintiff,
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v.
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COUNTY OF MERCED; DISTRICT
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ATTORNEY LARRY MORSE; DEPUTY )
DISTRICT ATTORNEY ALAN
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TURNER; COUNTY COUNSEL JAMES )
FINCHER; MERCED COUNTY
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SHERIFF MARK PAZIN; MERCED
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COUNTY SHERIFF DEPUTIES
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PACINICH, JASKOWIEAC, HILL and )
LEUCHNER; JAMES PADRON;
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SUPERVISOR JERRY O’BANION;
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CITY OF LOS BANOS; LOS BANOS
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POLICE OFFICERS GARY BRIZZEE )
and ANTHONY PARKER; CATHOLIC )
DIOCESE OF FRESNO; CONNIE
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McGHEE; McCLATCHY
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NEWSPAPERS; LOS BANOS
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ENTERPRISE; GENE LIEB; COREY
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PRIDE; and DOES 1 through 100, et al., )
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Defendants.
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____________________________________ )
1:11-CV-0318 AWI BAM
RESPONSE TO PLAINTIFF’S
REQUEST FOR
INTERVENTION AND ORDER
REQUIRING DEFENDANTS
UPDATE STATUS OF
CRIMINAL PROCEEDINGS IN
SUPERIOR COURT
Doc. No’s 113, 116 and 117
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On January 11, 2012, the court issued a Memorandum Opinion and Order granting in
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part and denying in part Defendants’ motion to dismiss Plaintiff’s First Amended Complaint.
Doc. # 96 (hereinafter, the “January 11 Order”). The Order was later amended to correct
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clerical errors and Plaintiff’s motion for reconsideration was denied, however the portion of
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the Order that stayed Plaintiff’s remaining claims pursuant to Younger v. Harris, 401 U.S. 37
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(1071) pending the conclusion of criminal proceedings in Merced County Superior Court
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remains in effect. As of this writing, the court has not received notification of the conclusion
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of the criminal case or cases in Merced Superior Court, but the court has received two
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pleadings from Plaintiff. The first pleading was filed on October 1, 2012, and is styled as a
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report on the status of Plaintiff’s criminal cases in Superior Court and a “Request for
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Intervention by the Court to Stop Defendants from Obstructing Justice in the Criminal
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Cases”. Doc. # 113 (hereinafter “Request for Intervention”). The second pleading was filed
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on November 21, 2012, and is titled “Request for Adherence to Judicial Canon 2.15
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Responding to Judicial And Lawyer Misconduct . . . .” Doc. # 116 and 117 (hereinafter, the
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“Request for Adherence").
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Although the requests are quite different in terms of what they seek; neither request
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can be granted because both seek this court’s intervention in, or review of, another court’s
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proceedings. As this court understands Plaintiff’s Request for Intervention, it is Plaintiff’s
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request that this court intervene in the Superior Court proceedings to either: (1) prevent the
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dismissal of Plaintiff’s criminal cases based on a finding of Plaintiff’s mental incompetence
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to stand trial, or (2) assure that any finding of mental incompetence by the Superior Court be
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made by a jury. There are at least two reason this request cannot be granted. The first reason
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was explained in some detail in the court’s January 11 Order. In a nutshell, this or any other
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court can only direct the actions of anyone outside the court by means of injunction; and the
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issuance of an injunction by a federal court that interferes in the proceedings in a state court
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is precisely what is prohibited by Younger. The Supreme Court’s reason for establishing
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what has come to be called the doctrine of “Younger Abstention” is based on our concept of
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“federalism” and is very eloquently set forth at pages 43 to 45 of the Younger decision.
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Plaintiff is encouraged to read that portion of the Younger decision.
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The second, and less important, reason Plaintiff’s Request for Intervention cannot be
granted is also explained is some detail in the court’s January 11 Order. As the court pointed
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out in that order, the decision to prosecute or not prosecute is at the sole and exclusive
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discretion of the district attorney of that jurisdiction. Contrary perhaps to Plaintiff’s
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understanding, district attorneys are representatives of the executive branch of government,
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not the judicial branch, and courts may not interfere in the discretion vested by the executive
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branch regarding the prosecution of crimes. See United States v. Miller, 722 F.2d 562, 565
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(9th Cir. 1983) (charging decisions are generally within the prosecutor’s exclusive domain).
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While the Sixth Amendment definitely assures that a person cannot be convicted of a crime
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without the opportunity of a trial before a jury, there is no right, constitutional or otherwise,
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to the maintenance of a criminal prosecution and a jury trial where the district attorney
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decides for any reason to dismiss the proceeding.
Plaintiff’s Request for Adherence pertains to an action filed by Plaintiff in the District
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Court of Northern California that alleges constitutional violations against the Pleasanton
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Police Department, among others. Plaintiff’s Request for Adherence suggests that the judge
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in that case, Judge Claudia Wilken, has preliminarily indicated that she will grant the motion
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for one or more of the defendants in that case for summary judgment notwithstanding
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Plaintiff’s allegation that a portion of the argument presented at the hearing on the motion for
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summary judgment was based on facts that were knowingly misrepresented by the
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defendants’ attorneys. In short, Plaintiff requests that this court act to prevent the occurrence
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of fraud upon the court that he feels is imminent in the Northern District. The court cannot
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grant Plaintiff’s request for the simple reason district courts do not supervise each other, they
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are each supervised by the Ninth Circuit Court of Appeal. The issue is basically one of
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venue. The case involving the Pleasanton Police Department was filed in the Northern
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District because the town of Pleasanton is in that District. When a party to an action seeks
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out a district court in a different district to rectify perceived errors in the original court, that is
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the essence of “forum shopping” and is prohibited. If, after the Northern District issues its
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decision on the motion for summary judgment, Plaintiff is of the opinion that the decision
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was a product of fraud upon the court, his only recourse is to the Ninth Circuit Court of
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Appeals. This court cannot carry out the supervisory duties of an appellate court.
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While the court cannot grant Plaintiff’s requests for intervention in other courts, the
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concerns raised in October of last year do raise a question of the status of the criminal
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proceedings in Superior Court. Since it appears that the issue of competency was raised at
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least four months ago, and the court has not received an update on the status of the case from
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Defendants in a considerably longer time, the court will direct that Defendants submit an
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update as to the status of criminal proceedings regarding Plaintiff in the Superior Court.
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THEREFORE, it is hereby ordered that Plaintiff’s requests as expressed in docket
numbers 113, 116 and 117 are each DENIED. Defendants shall submit an update on the
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status of criminal proceedings and shall provide a non-binding estimate of time to resolution
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of those proceedings not later than fifteen (15) days from the date of service of this order.
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IT IS SO ORDERED.
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Dated:
0m8i78
March 25, 2013
SENIOR DISTRICT JUDGE
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