Batterham v. Mono County Law Enforcement et al

Filing 18

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/8/2012 ORDERING 15 Amended Complaint filed by Sara Batterham is DISMISSED with leave to amend; Plaintiff is granted 30 days from date of this order to file a second amended complaint; failure to comply with this order will result in a recommendation that this action be dismissed; Status (Pretrial Scheduling) Conference for 2/22/2012 is VACATED; Clerk shall serve a copy of this order on USM; USM is directed to serve a copy of this order on any defendants that the USM served with the original complaint, except defendants Hornbeck and Town of Mammoth Lakes, who have appeared in this action; any individuals and/or entities not yet served with the initial complaint need not be serve with that complaint or with this order. (cc: USM via interoffice mailbox) (Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SARA BATTERHAM,

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Plaintiff,

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No. CIV S-11-1118 GEB EFB PS

vs.
MONO COUNTY LAW
ENFORCEMENT, et al.,

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Defendants.
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ORDER
/

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This case, in which plaintiff is proceeding pro se and in forma pauperis, is before the

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undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C.

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§ 636(b)(1). On April 26, 2011, plaintiff filed a complaint alleging numerous claims against the

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Town of Mammoth Lakes, Mono County Law Enforcement, the Mono County District

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Attorneys’ Office, Mono County district attorney George Booth, Mono County deputy district

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attorneys Kyle Graham and Jeremy Ibrihim, and Mono County district attorney investigators

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Wade McCammond, Frank Smith, and Doug Hornbeck. Dckt. No. 1. Among other things, the

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complaint alleged that defendants violated plaintiff’s due process and other civil rights, as well

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as a variety of state law rights, by falsely arresting and imprisoning plaintiff for alleged

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embezzlement from her former employer, searching plaintiff’s residence and seizing her

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belongings, and altering evidence regarding plaintiff’s case. Id. The complaint also included
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numerous allegations regarding a variety of alleged misconduct by defendants. Id.
Then, after defendants Doug Hornbeck and the Town of Mammoth Lakes filed a motion

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to dismiss plaintiff’s initial complaint, on December 29, 2011, plaintiff filed an amended

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complaint against “Mono County Law Enforcement, et al.,” John Ball, Intuit Inc., and Leanne

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Jesperson, alleging violations of her rights to a fair trial, due process, and equal protection of the

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laws, based on conduct that allegedly occurred during plaintiff’s jury trial in October and

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November 2011. Dckt. No. 15. The amended complaint also continued to include allegations

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against previously named defendant Doug Hornbeck. Id. at 2-3. However, the amended

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complaint did not include many of the allegations stated in plaintiff’s original complaint, nor did

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it allege any claims against many of the defendants named therein.
Nonetheless, on January 11, 2012, the undersigned issued an order stating that

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“[a]lthough it is unclear whether plaintiff intended for her amended complaint to supercede her

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original complaint or only to supplement it, because such supplementation is impermissible and

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because amended complaints supersede earlier complaints filed in an action, the court assumes

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plaintiff’s amended complaint was intended to supercede her original complaint.” 1 Dckt. No. 16

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at 2. The order then found that plaintiff should be granted leave to amend; deemed plaintiff’s

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first amended complaint, Dckt. No. 15, the operative complaint in this action; and denied

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defendants’ motion to dismiss as moot. Id. at 4. However, out of an abundance of caution, the

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order also provided that “[i]f plaintiff did not intend for her amended complaint to supercede her

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original complaint, on or before January 27, 2012, plaintiff shall file a motion for leave to further

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amend her complaint to include all of her allegations and all defendants.” Id. The order noted

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that “[i]f plaintiff does not file such a motion, the court will issue an order directing service of

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process on only the defendants named in the first amended complaint and setting a deadline for

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The order also stated: “If plaintiff did not intend for her amended complaint to
supercede her original complaint, and only intended instead that it supplement that complaint
(which is not permissible), plaintiff shall file a motion for leave to further amend her complaint
to include all of her allegations and all defendants.” Dckt. No. 16 at 4, n.1.
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already-served defendants to respond to the first amended complaint.” Id. at 5. Finally, the

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order provided that defendants who have already been served with the first amended complaint

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need not file a response to that complaint until directed to do so by the court.

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The January 27, 2012 deadline has passed and the court docket reflects that plaintiff has

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not filed a motion for leave to further amend her complaint. Therefore, as provided in the

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January 11, 2012 order, the undersigned will direct service of process on only the defendants

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named in the caption and/or the allegations in the first amended complaint: Mono County Law

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Enforcement, Judge John T. Ball, Intuit Inc., Leanne Jesperson, Doug Hornbeck, and the Mono

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County District Attorney’s Office.

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However, before directing service of process, because plaintiff is proceeding in forma

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pauperis, the court must determine whether the action is frivolous or malicious, fails to state a

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claim on which relief may be granted, or seeks monetary relief against an immune defendant.

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See 28 U.S.C. § 1915(e)(2). Although pro se pleadings are liberally construed, see Haines v.

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Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or portion thereof, should be dismissed for

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failure to state a claim if it fails to set forth “enough facts to state a claim to relief that is

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plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing

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Conley v. Gibson, 355 U.S. 41 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s

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obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and

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conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual

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allegations must be enough to raise a right to relief above the speculative level on the assumption

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that all of the complaint’s allegations are true.” Id. (citations omitted). Dismissal is appropriate

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based either on the lack of cognizable legal theories or the lack of pleading sufficient facts to

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support cognizable legal theories. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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In her first amended complaint, plaintiff alleges that “Mono county law enforcement
engaged in numerous civil rights violations including denying plaintiff the right to a fair trial,
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due process, and equal protection of the laws.” Dckt. No. 15 at 1. She claims that her criminal

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jury trial in October and November 2011 was an “ambush,” and that she was denied counsel,

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denied her right to confront witnesses, and denied her right to equal protection and due process.

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Id. at 1, 2. Specifically, she contends that (1) Officer Hornbeck tampered with witness

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statements, witnesses, and jurors, id. at 2; (2) witness Leanne Jesperson conspired with

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Hornbeck and the prosecution, committed perjury, and dissuaded other potential witnesses from

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attending trial, id. at 3; (3) Hornbeck and the prosecution illegally tapped plaintiff’s phone and

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computer during trial, id. at 3; (4) the judge engaged in numerous fair trial and equal protection

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violations and is not immune because he is not a properly elected official, id. at 3; (5) her former

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attorney, Christian Zeaman, testified against her and revealed confidential communications, id.

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at 3; and (6) the charges against her violated her due process and equal protection rights, id. at 3.

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She seeks immediate release from custody and wants the court to direct the Department of

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Justice to oversee all cases prosecuted by the Mono County district attorney’s office. Id. at 3-4.

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It thus appears that plaintiff really seeks to challenge the fairness of her trial and the

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validity of her conviction. Therefore, the complaint is barred under Heck v. Humphrey, 512 U.S.

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477 (1994), which precludes federal courts from entertaining collateral challenges to state

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criminal convictions absent the conviction being called into question. In order to bring a civil

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rights claim alleging an unconstitutional criminal conviction or sentence, a plaintiff must first

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show that the underlying conviction was reversed on direct appeal, expunged by executive order,

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declared invalid by a state tribunal, or questioned by the grant of a writ of habeas corpus. Heck,

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512 U.S. at 486-87. Plaintiff’s failure to do so in the instant case precludes her from collaterally

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challenging her state court conviction in federal court. Id.

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Moreover, under the Rooker-Feldman doctrine, a federal district court does not have

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subject-matter jurisdiction to hear an appeal from the judgment of a state court. Exxon Mobil

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Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005); see also Dist. of Columbia

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Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S.
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413, 415 (1923). The Rooker-Feldman doctrine bars jurisdiction in federal district court if the

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exact claims raised in a state court case are raised in the subsequent federal case, or if the

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constitutional claims presented to the district court are “inextricably intertwined” with the state

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court’s denial of relief. Bianchi v. Rylaarsdam, 334 F.3d 895, 898-99 (9th Cir. 2003) (quoting

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Feldman, 460 U.S. at 483 n. 16). Rooker-Feldman thus bars federal adjudication of any suit

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whether a plaintiff alleges an injury based on a state court judgment or directly appeals a state

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court’s decision. Id. at 900 n.4. The district court lacks subject matter jurisdiction either to

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conduct a direct review of a state court judgment or to scrutinize the state court’s application of

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various rules and procedures pertaining to the state case. Samuel v. Michaud, 980 F. Supp. 1381,

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1411-12 (D. Idaho 1996), aff’d, 129 F.3d 127 (9th Cir. 1997); see also Branson v. Nott, 62 F.3d

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287, 291-92 (9th Cir. 1995) (finding no subject matter jurisdiction over section 1983 claim

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seeking, inter alia, implicit reversal of state trial court action). “That the federal district court

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action alleges the state court’s action was unconstitutional does not change the rule.” Feldman,

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460 U.S. at 486. In sum, “a state court’s application of its rules and procedures is unreviewable

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by a federal district court. The federal district court only has jurisdiction to hear general

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challenges to state rules or claims that are based on the investigation of a new case arising upon

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new facts.” Samuel, 980 F. Supp. at 1412-13. The doctrine applies to attacks of criminal

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judgments as well as civil ones. Roberts v. Los Angeles City Fire Dep’t, 86 F. Supp.2d 990, 994

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(C.D. Cal. 2000); see also Datz v. Kilgore, 51 F.3d 252, 253 (11th Cir. 1995) (applying

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Rooker-Feldman doctrine where state court judgment was a criminal conviction). Accordingly,

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to the extent plaintiff’s complaint claims that her conviction was unlawful and to the extent that

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plaintiff requests that this court reverse her conviction, such a claim is dismissed.

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Moreover, many of the parties plaintiff names in her first amended complaint are

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improper defendants and/or are immune from liability. Judges are absolutely immune from suit

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for judicial actions taken by them in the course of their official duties in connection with a case,

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unless those actions are taken in the complete absence of all jurisdiction. Mireles v. Waco, 502
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U.S. 9, 11-12 (1991). This immunity bars plaintiff from proceeding against Judge Ball in this

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§ 1983 action. Pierson v. Ray, 386 U.S. 547, 554 (1967) (finding that judicial immunity is

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applicable to § 1983 actions). Additionally, prosecutors are absolutely immune from suit for

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actions taken by them in performing the traditional functions of a prosecutor. Kalina v. Fletcher,

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522 U.S. 118, 131 (1997). As such, plaintiff cannot proceed against the prosecutors for any

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perceived injustices relating to her prosecution. Finally, to state a claim under § 1983, plaintiff

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must allege: (1) the violation of a federal constitutional or statutory right; and (2) that the

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988). Here, plaintiff fails to allege that some of the defendants named in the first

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amended complaint are state actors or were otherwise acting under color of law. See Sutton v.

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Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (The party charged with a

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constitutional deprivation under § 1983 must be a person who may fairly be said to be a

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governmental actor) (citation and quotations omitted). Section “1983 excludes from its reach

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merely private conduct, no matter how discriminatory or wrong.” Id. (citing Am. Mfrs. Mut. Ins.

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Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citation and internal quotation marks omitted)).

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Therefore, plaintiff’s complaint will be dismissed. However, plaintiff will be granted

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leave to file a second amended complaint, if plaintiff can allege a cognizable legal theory against

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a proper defendant and sufficient facts in support of that cognizable legal theory. Lopez v. Smith,

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203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an

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opportunity to amend to correct any deficiency in their complaints). Should plaintiff choose to

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file a second amended complaint, the second amended complaint shall clearly set forth the

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allegations against each defendant and shall specify a basis for this court’s subject matter

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jurisdiction.

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Additionally, plaintiff is informed that the court cannot refer to prior pleadings in order to

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make an amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself. This is because, as a general rule, an amended complaint supersedes the
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original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Accordingly, once

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plaintiff files a second amended complaint, her first amended complaint no longer serves any

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function in the case. Therefore, “a plaintiff waives all causes of action alleged in the original

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complaint which are not alleged in the amended complaint,” London v. Coopers & Lybrand, 644

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F.2d 811, 814 (9th Cir. 1981), and defendants not named in an amended complaint are no longer

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defendants. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Finally, the court cautions

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plaintiff that failure to comply with the Federal Rules of Civil Procedure, this court’s Local

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Rules, or any court order may result in a recommendation that this action be dismissed. See E.D.

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Cal. L.R. 110; Fed. R. Civ. P. 41.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s first amended complaint is dismissed with leave to amend, as provided

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herein.
2. Plaintiff is granted thirty days from the date of service of this order to file a second

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amended complaint. The second amended complaint must bear the docket number assigned to

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this case and must be labeled “Second Amended Complaint.”

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3. Failure to timely file a second amended complaint in accordance with this order will
result in a recommendation this action be dismissed.
4. The status (pretrial scheduling) conference currently set for hearing on February 22,
2012 is vacated.
5. The Clerk of Court shall serve a copy of this order on the United States Marshal, 501
“I” Street, Sacramento, CA 95814 (tel. [phone]).
6. The U.S. Marshal is directed to serve a copy of this order on any of the defendants

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that the U.S. Marshal served with the original complaint (except defendants Doug Hornbeck and

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the Town of Mammoth Lakes, who have appeared in this action and will therefore receive a copy

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of this order electronically), at the addresses where those individuals or entities were served, so

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that those individuals and entities are aware that they need not respond to plaintiff’s original or
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first amended complaints. Any individuals and/or entities not yet served with the initial

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complaint need not be served with that complaint or with this order.

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DATED: February 8, 2012.

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