(PC) Harris. v. USA

Filing 19

FINDINGS and RECOMMENDATIONS, Recommending That This Action be Dismissed; ORDER DIRECTING Clerk to Assign District Judge, signed by Magistrate Judge Erica P. Grosjean on 11/16/2020. Objections to F&R due within Twenty One Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEVON DANTE HARRIS, JR.,

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Case No. 1:20-cv-00007-EPG (PC)

Plaintiff,

FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION
BE DISMISSED

v.
USA, et al.,

(ECF No. 17)

Defendants.

OBJECTIONS, IF ANY, DUE WITHIN
TWENTY-ONE DAYS

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ORDER DIRECTING CLERK TO ASSIGN
DISTRICT JUDGE

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Devon Dante Harris, Jr. (“Plaintiff”), is a state prisoner proceeding pro se and in forma

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pauperis in this action. Plaintiff filed the complaint commencing this action on October 28,

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2019. (ECF No. 1). On June 2, 2020, the Court screened Plaintiff’s complaint and found that it

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failed to state any cognizable claims. (ECF No. 11). The Court gave Plaintiff thirty days to

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either “(a) File a first amended complaint attempting to cure the deficiencies identified in [the

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screening] order; or (b) Notify the Court in writing that he wishes to stand by the complaint as

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written, in which case the undersigned will issue findings and recommendation to the assigned

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district judge consistent with this order.” (Id. at 12).

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On November 4, 2020, Plaintiff filed his First Amended Complaint. (ECF No. 17).

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The Court has reviewed Plaintiff’s First Amended Complaint, and for the reasons described in

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this order will recommend that this action be dismissed.
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Plaintiff has twenty-one days from the date of service of these findings and
recommendations to file his objections.

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I.

SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 10), the Court may

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also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any

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portion thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that the action or appeal fails to state a claim upon which relief may be granted.”

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28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint is required to contain “a short and plain statement of the claim showing

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that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.

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(quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting

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this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts

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“are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d

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677, 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a

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plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678.
Pleadings of pro se plaintiffs “must be held to less stringent standards than formal

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pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that

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pro se complaints should continue to be liberally construed after Iqbal).

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II.

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Plaintiff’s complaint is 221 pages, lists numerous claims, lists numerous defendants,

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SUMMARY OF PLAINTIFF’S FIRST AMENDED COMPLAINT

contains numerous arguments, and contains numerous citations to legal standards.
As with Plaintiff’s previous complaint, the gravamen of Plaintiff’s First Amended

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Complaint appears to be that he was confined in prison longer than he was supposed to be due

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to an order issued by District Court Judge Lawrence J. O’Neill, which was reversed on appeal.

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Among others, Plaintiff appears to blame Judge O’Neill and a probation officer, Jiar C. Hill.

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As stated in an order attached to Plaintiff’s complaint, the Ninth Circuit vacated the
second amended judgment in Plaintiff’s criminal case because “the district judge lacked

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jurisdiction to alter Harris’s sentence after the expiration of the 14-day deadline provided for in

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Rule 35(a) of the Federal Rules of Criminal Procedure.” (ECF No. 17, p. 152). The Ninth

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Circuit directed that on “remand, the district court shall enter a new judgment reflecting the six-

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month custodial term imposed at Harris’s original March 27, 2017, sentencing, but excluding

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the 27-month term of supervised release that was included in the March 28, 2017, written

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judgment but not orally pronounced.” (Id.).

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Based on the record in Plaintiff’s criminal case, USA v. Harris, E.D. Cal, 1:15-cr-

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00140, it appears that in the third amended judgment Plaintiff was sentenced to six months in

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custody instead of eighteen months. See USA v. Harris, ECF No. 107.

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III.

ANALYSIS OF PLAINTIFF’S COMPLAINT
A. Federal Rule of Civil Procedure 8(a)

As set forth above, Rule 8(a) of the Federal Rules of Civil Procedure requires a

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complaint to contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint is not required to include

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detailed factual allegations, it must set forth “sufficient factual matter, accepted as true, to ‘state

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a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550

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U.S. at 570). It must also contain “sufficient allegations of underlying facts to give fair notice

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and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202,

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1216 (9th Cir. 2011). Moreover, Plaintiff must demonstrate that each named defendant
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personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77.
A court may dismiss a complaint for failure to comply with Rule 8(a) if it is “verbose,

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confusing and conclusory.” Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir.

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1981); Brosnahan v. Caliber Home Loans, Inc., 765 F. App’x 173, 174 (9th Cir. 2019).

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Additionally, a court may dismiss a complaint for failure to comply with Rule 8(a) if it is

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“argumentative, prolix, replete with redundancy, and largely irrelevant.” McHenry v. Renne,

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84 F.3d 1172, 1177 (9th Cir. 1996).

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Plaintiff's First Amended Complaint is not a short and plain statement of his claims.
The complaint is 221 pages. While some of these 221 pages are exhibits, the exhibits are

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scattered throughout the complaint. (See, e.g., ECF No. 17, pgs. 148-155; ECF No. 17, pgs.

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217-220).

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The gravamen of Plaintiff’s First Amended Complaint appears to be that he was

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confined in prison longer than he was supposed to be due to an order issued by Judge O’Neill.

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Plaintiff appears to allege that in a hearing on April 17, 2017, Judge O’Neill wrongfully issued

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an order mandating that Plaintiff be imprisoned for eighteen months. Judge O’Neill’s actions

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caused Plaintiff to wrongfully spend 247 days in federal prison. However, Plaintiff’s complaint

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also includes numerous other claims and defendants, and the facts underlying each claim

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against each defendant are not at all clear. It appears that in numerous claims, Plaintiff fails to

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include factual allegations as to each defendant’s conduct, and many of the factual allegations

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he does include are conclusory.

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Finally, Plaintiff’s complaint includes numerous arguments and irrelevant citations to
legal standards.
Thus, Plaintiff’s complaint does not give fair notice to the defendants to enable them to

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defend themselves effectively. Additionally, it is verbose, confusing, conclusory,

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argumentative, prolix, replete with redundancy, and largely irrelevant. Accordingly, Plaintiff’s

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complaint should be dismissed for failing to comply with Rule 8(a).

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B. Judicial Immunity
Moreover, the gravamen of Plaintiff’s First Amended Complaint appears to be that he
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was confined longer than he was supposed to be due to an order issued by Judge O’Neill, and

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the defendants allegedly responsible for this appear to be entitled to immunity.

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“It has long been established that judges are absolutely immune from liability for acts

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‘done by them in the exercise of their judicial functions.’” Miller v. Davis, 521 F.3d 1142,

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1145 (9th Cir. 2008) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871)). “A judge

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will not be deprived of immunity because the action he took was in error, was done

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maliciously, or was in excess of his authority; rather, he will be subject to liability only when

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he has acted in the ‘clear absence of all jurisdiction.’” Stump v. Sparkman, 435 U.S. 349, 356-

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57 (1978) (quoting Bradley, 80 U.S. at 351).

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There is a “distinction between lack of jurisdiction and excess of jurisdiction,” Stump,
435 U.S. at 357 n.7, as illustrated by the following example:
[I]f a probate judge, with jurisdiction over only wills and estates,
should try a criminal case, he would be acting in the clear
absence of jurisdiction and would not be immune from liability
for his action; on the other hand, if a judge of a criminal court
should convict a defendant of a nonexistent crime, he would
merely be acting in excess of his jurisdiction and would be
immune.

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Stump, 435 U.S. at 357 n.7 (citing Bradley, 80 U.S. at 352).
Here, the Ninth Circuit vacated the second amended judgment in Plaintiff’s criminal

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case because “the district judge lacked jurisdiction to alter Harris’s sentence after the expiration

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of the 14-day deadline provided for in Rule 35(a) of the Federal Rules of Criminal Procedure.”

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(ECF No. 17, p. 152). District Judge O’Neill only acted in excess of jurisdiction and thus, is

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absolutely immune. See Stump, 435 U.S. at 356-57, 357 n.7. Accordingly, to the extent that

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Plaintiff’s various claims for damages are based on the acts of Judge O’Neill, Plaintiff is not

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entitled to relief. See Cleavinger v. Saxner, 474 U.S. 193, 199-200 (1985) (Judicial “immunity

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applies ‘however erroneous the act may have been, and however injurious in its consequences

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it may have proved to the plaintiff.’” (quoting Bradley, 80 U.S. (13 Wall.) at 347)); Pierson,

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386 U.S. at 554 (“It is a judge’s duty to decide all cases within his jurisdiction that are brought

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before him…. His errors may be corrected on appeal, but he should not have to fear that
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unsatisfied litigants may hound him with litigation charging malice or corruption”).
Plaintiff also alleges, in a conclusory fashion, that defendant Hill, a probation officer,

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sent Plaintiff “to prison because of plaintiff[’]s protected mental health disabity [sic], and

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defendant[’]s perception of Plaintiff being a[n] unhelpable drug addict.” (ECF No. 17, p. 5).

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There are numerous issues with these allegations, one of which is that Plaintiff does not appear

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to sufficiently connect defendant Hill to the violations alleged in the complaint. A second issue

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is that Plaintiff appears to be suing defendant Hill for his recommendations to Judge O’Neill,

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and if he is, defendant Hill is entitled to immunity. “[I]mmunity extends to all persons whose

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functions are closely associated with the judicial process. See e.g., Burns v. Reed, 500 U.S. 478

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(1991). Probation officers serve a function integral to the judicial process, and as such, are

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entitled to quasi-judicial immunity. Burkes v. Callion, 433 F.2d 318, 319 (9th Cir. 1970), see

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also Demoran v. Witt, 781 F.2d 155 (9th Cir. 1985) (absolute immunity for probation

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officers).” Trujillo v. Kiefer, 2020 WL 4596764, at *2 (S.D. Cal. Aug. 11, 2020). See also

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Ballard v. Wong, 2016 WL 1359928, at *4 (E.D. Cal. Apr. 6, 2016) (“[P]robation officers are

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generally protected by quasi-judicial immunity for actions undertaken in their role as probation

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officers.”).

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IV.

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The Court recommends that this action should be dismissed without granting Plaintiff

CONCLUSION AND RECOMMENDATIONS

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further leave to amend. The Court previously provided Plaintiff with an opportunity to amend

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his complaint with the benefit of the relevant legal standards, and Plaintiff filed his First

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Amended Complaint with the guidance of those legal standards. Moreover, the gravamen of

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Plaintiff’s First Amended Complaint appears to be that he was confined in prison longer than

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he was supposed to be due to an order issued by Judge O’Neill, and the defendants responsible

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for this appear to be entitled to immunity. Thus, it appears that further leave to amend would

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be futile.

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Accordingly, the Court HEREBY RECOMMENDS that:

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1. This action be dismissed; and

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2. The Clerk of Court be directed to close this case.
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These findings and recommendations will be submitted to the United States district

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judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within

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twenty-one (21) days after being served with these findings and recommendations, Plaintiff

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may file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district
judge to this case.

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IT IS SO ORDERED.
Dated:

November 16, 2020

/s/
UNITED STATES MAGISTRATE JUDGE

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