Ray v. Maher

Filing 7

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 03/24/11 ORDERING plaintiff's request to proceed in forma pauperis 2 is granted. Plaintiff shall pay the statutory filing fee of $350.00 for this acti on. All fees shall be collected in accordance with the court's CDC order filed concurrently herewith. Also, RECOMMENDING that plaintiff's complaint be dismissed without leave to amend and the clerk be directed to close the case. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

(PC) Ray v. Maher

Doc. 7

1 2 3 4 5 6 7 8 9 10 11 vs. 12 VINCENT R. MAHER, 13 Defendant. 14 / 15 16 17 18 19 20 21 22 23 24 25 26 James P. Ray, an inmate confined at Deuel Vocational Institution, filed this pro se civil rights action under 42 U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). For the reasons set forth below, the court finds that plaintiff's amended complaint fails to state any claims for which relief can be granted under § 1983, and recommends that it be dismissed without leave to amend. I. Request to Proceed In Forma Pauperis Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Dckt. No. 2. Plaintiff's application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JAMES P. RAY, Plaintiff, No. CIV S-09-1102 JAM EFB P

ORDER AND FINDINGS AND RECOMMENDATIONS

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§ 1915(b)(1) and (2). II. Screening Order Pursuant to 28 U.S.C. § 1915A, the court shall review "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). A district court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id. (citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id. at 1950. The Civil Rights Act under which this action was filed provides: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the
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party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 42 U.S.C. § 1983. An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). The court has reviewed plaintiff's complaint pursuant to 28 U.S.C. § 1915A and finds it does not state a cognizable claim. Plaintiff seeks damages from his trial counsel, stating: Vincent Maher has throughout his representation in my criminal case, taken on the role of a surrogate-prosecutor against my best interest. He has refused to perform investigations critical and necessary to my defense. Due to the lack of adequate representation by Vincent Maher, my case has been prejudiced .... I would like the courts to sanction Vincent Maher as well as compensate me for the mental anguish that I suffered as a result of Vincent Maher's fraudulent misrepresentation. I would like to be compensated in the amount of $100,000,000 . . . as well as $100,000 . . . for punitive damages. Dckt. No. 1 at 5. It appears that, despite his demand for money damages, plaintiff's claim goes to the validity of his conviction or sentence. The Supreme Court has held that "a state prisoner's § 1983 action is barred (absent prior invalidation)--no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)--if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (emphasis added); see also Edwards v. Balisok, 520 U.S. 641 (1997); Heck v. Humphrey, 512 U.S. 477 (1994). Were plaintiff to succeed on his claims that his defense attorney provided ineffective assistance and he was prejudiced as a result, those findings would necessarily
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implicate the constitutionality of plaintiff's current imprisonment. See Heck, 512 U.S. at 487. Plaintiff has not demonstrated that his sentence has previously been invalidated. His claims challenging the validity of his conviction or sentence should therefore be dismissed without leave to amend. Plaintiff may wish to file a habeas corpus petition challenging the validity of his conviction due to the allegedly ineffective assistance of his trial counsel. Accordingly, the court hereby ORDERS that: 1. Plaintiff's request to proceed in forma pauperis is granted. 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in accordance with the notice to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith. Further, it is hereby RECOMMENDED that plaintiff's complaint be dismissed without leave to amend and the Clerk be directed to CLOSE the case. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: March 24, 2011.

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