Morales v. Hammonds
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 11/14/11 RECOMMENDING that this action be dismissed. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOHN LEE MORALES,
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No. CIV S-11-2581-KJM-CMK
Plaintiff,
vs.
FINDINGS AND RECOMMENDATIONS
ROBERT HAMMONDS, JR.,
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Defendant.
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/
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Plaintiff, who is proceeding pro se, brings this civil action. Pending before the
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court is plaintiff’s complaint (Doc. 1).1 The court is required to screen complaints brought by
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prisoners seeking relief against a governmental entity or officer or employee of a governmental
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entity. See 28 U.S.C. § 1915A(a). The court is also required to screen complaints brought by
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litigants who have been granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2).
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Under these screening provisions, the court must dismiss a complaint or portion thereof if it: (1)
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is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks
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monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§
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Plaintiff’s complaint submitted to this court is a California form complaint for
personal injury.
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1915(e)(2)(A), (B) and 1915A(b)(1), (2). Moreover, pursuant to Federal Rule of Civil Procedure
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12(h), this court must dismiss an action “[w]henever it appears . . . that the court lacks
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jurisdiction of the subject matter . . . .” Because plaintiff, who is not a prisoner, has been granted
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leave to proceed in forma pauperis, the court will screen the complaint pursuant to § 1915(e)(2).
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Pursuant to Rule 12(h), the court will also consider as a threshold matter whether it has subject-
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matter jurisdiction.
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Plaintiff names Robert Hammonds, Jr., Esq., as the only defendant. Plaintiff
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states that Mr. Hammonds has been appointed to represent him, apparently in the context of an
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ongoing state criminal proceeding. According to plaintiff, Mr. Hammonds has not contacted him
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to discuss the case. He also claims that Mr. Hammonds has failed to file critical motions in his
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case. Plaintiff claims that defendant’s negligence has resulted in the denial of his constitutional
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right to effective assistance of counsel.
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Principles of comity and federalism require that this court abstain and not
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entertain petitioner's pre-conviction challenge unless he shows that: (1) he has exhausted
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available state judicial remedies, and (2) “special circumstances” warrant federal intervention.
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See Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir.1980). Only in cases of proven harassment
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or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid
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conviction and perhaps in other special circumstances where irreparable injury can be shown is
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federal injunctive relief against pending state prosecutions appropriate. See id. at 84 (citing
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Perez v. Ledesma, 401 U.S. 82, 85 (1971)). In the current case, plaintiff makes no such showing
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of “special circumstances” warranting federal intervention before the trial is held and any appeal
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is completed. See id. Plaintiff’s remedies, if any, at this stage in the state court criminal
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proceedings lie in the state court (i.e., a motion for appointment of new counsel).
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///
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///
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Based on the foregoing, the undersigned recommends that this action be
dismissed.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
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after being served with these findings and recommendations, any party may file written
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objections with the court. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: November 14, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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