Garcia v. Moore et al

Filing 9

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED for Failure to State a Claim re 7 Complaint, signed by Magistrate Judge Dennis L. Beck on 1/11/2012. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEPHEN GARCIA,

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Plaintiff,

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v.
KOJO H. MOORE, et al.,

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Defendants.

) 1:12cv031 AWI DLB
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) FINDINGS AND RECOMMENDATIONS
) REGARDING DISMISSAL OF ACTION
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Plaintiff Stephen Garcia (“Plaintiff”), appearing pro se and proceeding in forma pauperis,

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filed this action on December 27, 2011. The action was transferred to this Court on December

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31, 2011. Plaintiff names attorney Kojo J. Moore and Ciummo & Associates as Defendants.

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DISCUSSION
A.

Screening Standard

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Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the

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complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof

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if the court determines that the action is legally “frivolous or malicious,” fails to state a claim

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upon which relief may be granted, or seeks monetary relief from a defendant who is immune

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from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state

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a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be

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cured by amendment.
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In reviewing a complaint under this standard, the Court must accept as true the allegations

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of the complaint in question, Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U.S. 738, 740

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(1976), construe the pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick

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v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor,

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Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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B.

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Allegations
Plaintiff is a resident of Los Angeles. He alleges that in December 2008, he was arrested

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at a Rite Aide in Fresno County after arguing with the manager. Plaintiff contends that he was

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assaulted during the arrest and suffered a broken jaw. He was charged with assault and making

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terrorist threats against a police officer.
During a hearing in the criminal action, Plaintiff alleges that he made a motion to dismiss

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based on inconsistent testimony. The motion was denied. Plaintiff’s charges were eventually

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dropped from felonies to misdemeanors.

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Soon thereafter, on February 19, 2009, Defendant Kojo J. Moore was appointed to

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represent Plaintiff. He alleges that his charges were changed back to felonies and that he

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requested that Defendant Moore discuss this with the judge. Plaintiff alleges that Defendant

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Moore failed to do so and therefore committed fraud by pursuing the case as a felony case “just

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to bring in profits” for Defendant Ciummo & Associates.

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The assault charge was eventually dismissed and Plaintiff requested that Defendant

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Moore move to dismiss the action because the 90-day speedy trial time had expired. Defendant

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Moore did not do so and the judge denied Plaintiff’s own request. Plaintiff alleges that he was

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offered 2 years probation and time served.

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Plaintiff first alleges a cause of action for breach of fiduciary duty based on

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misrepresentations that Defendant Moore would be the lead trial attorney, that Defendants had

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expertise in complex criminal cases and that Defendant Moore would file a motion to dismiss.

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He alleges that as a result, he was placed on a 2 year felony probation “and then re-arrested and

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re-sentenced to a stricter probation.”

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For the second cause of action, Plaintiff alleges negligent misrepresentation based on

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failure to disclose the misrepresentations alleged in the first cause of action. Plaintiff further

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alleges that he relied on these misrepresentations and lost his case as a result.

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Finally, Plaintiff alleges a cause of action for professional negligence for various failures
in discovery and during trial.

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Plaintiff requests damages in the amount of 10 million dollars.
C.

Analysis

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Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of

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Am., 511 U.S. 375, 377 (1994). Generally, federal jurisdiction may be invoked if a civil action

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arises under the Constitution, laws, or treaties of the United States, see 28 U.S.C. § 1331, or if

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there is complete diversity between the parties and the amount in controversy exceeds $75,000.

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See 28 U.S.C. § 1332. It is presumed that a cause lies outside this limited scope, and the burden

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of establishing the contrary rests upon the party asserting federal jurisdiction. Kokkonen, 511

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U.S. at 377; Vacek v. United States Postal Serv., 447 F.3d 1248, 1250 (9th Cir.2006).

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On the Civil Cover Sheet, Plaintiff indicates that this action is brought pursuant to this

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Court’s diversity jurisdiction. However, all parties reside in California and are therefore not

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diverse. See 28 U.S.C. § 1332 (diversity jurisdiction requires that the parties be citizens of

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different states and the amount in controversy exceed $75,000). Accordingly, this Court does not

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have diversity jurisdiction over Plaintiff’s action.

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Plaintiff’s claims also fail to raise any issues under federal law. His claims for breach of

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fiduciary duty, negligent misrepresentation and professional negligence are state law claims over

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which this Court does not have jurisdiction.

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While there are circumstances under which a plaintiff can challenge the assistance of

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counsel in federal court, those circumstances are not present here. When a prisoner challenges

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the legality or duration of his custody, or raises a constitutional challenge which could entitle him

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to an earlier release, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411

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U.S. 47 5 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090

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(1991).
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Moreover, when seeking damages for an allegedly unconstitutional conviction or

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imprisonment, “a § 1983 plaintiff must prove that the conviction or sentence has been reversed

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on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to

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make such determination, or called into question by a federal court’s issuance of a writ of habeas

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corpus, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 487-88 (1994). “A claim for

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damages bearing that relationship to a conviction or sentence that has not been so invalidated is

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not cognizable under § 1983.” Id. at 488. Therefore, Plaintiff cannot challenge his confinement

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in a section 1983 action where his conviction has not been invalidated.

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Accordingly, this Court does not have jurisdiction over Plaintiff’s claims and

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recommends that the action be dismissed. Plaintiff may attempt to raise his claims in a petition

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for writ of habeas corpus, or he may file his claims in the appropriate California court.

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RECOMMENDATION
Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for
failure to state a claim.

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These findings and recommendations will be submitted to the Honorable Anthony W.

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Ishii, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after

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being served with these Findings and Recommendations, Plaintiff may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge's Findings

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and Recommendations.” Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
3b142a

January 11, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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