Pena v. Shaffer et al

Filing 11

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/2/12 ORDERING that 2 Motion to Appoint Counsel is DENIED; 8 Motion to Proceed IFP is GRANTED; Plaintiff shall pay the statutory filing fee of $350. The complaint is DISMISSED for failure to state a claim. The Clerk is directed to close this case. CASE CLOSED. (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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IGNACIO POLVOS PENA,
Plaintiff,

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vs.

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No. 2:12-cv-0006 EFB P

JENNIFER SHAFFER, et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se with this civil rights action under 42 U.S.C.

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§ 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in forma

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pauperis and a request for appointment of counsel. This proceeding was referred to this court by

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Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to

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plaintiff’s consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4).

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I.

Request to Proceed In Forma Pauperis

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Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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Dckt. No. 8. Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and

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(2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to

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collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).
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II.

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Request for Appointment of Counsel
Plaintiff requests that the court appoint counsel. District courts lack authority to require

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counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an

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attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate

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his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there are no

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exceptional circumstances in this case.

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III.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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Furthermore, a claim upon which the court can grant relief has facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the
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misconduct alleged.” Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to

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the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal

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Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain

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statement of the claim showing that the pleader is entitled to relief, in order to give the defendant

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fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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IV.

Screening Order

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The court has reviewed plaintiff’s complaint pursuant to § 1915A and finds that it must

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be dismissed. With his complaint plaintiff submits a copy of the transcript from his September

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8, 2010 parole suitability hearing before the Board of Parole Hearings. According to the

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transcript, plaintiff is serving an indeterminate life sentence for a second degree murder

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conviction. Plaintiff alleges that defendants Garner and Iniguez, both parole board

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commissioners, denied plaintiff parole and illegally deferred plaintiff’s next parole suitability

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hearing by five years pursuant to Proposition 9, also known as Marsy’s Law. Plaintiff also

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alleges that defendants Garner and Iniguez violated his rights by failing to abide by the terms of

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his plea bargain contract. Also named as a defendant is Jennifer Shaffer, the Executive Director

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for the Board of Parole Hearings, who plaintiff claims is legally responsible for the conduct of

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defendants Garner and Iniguez. As relief, plaintiff requests monetary damages, the right to

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withdraw his guilty plea and have a jury trial, and any other equitable relief the court deems

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proper. As discussed below, the allegations are insufficient to state a claim for monetary

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damages against defendants in either their official or individual capacities, and the claims for

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equitable relief are barred by either Heck v. Humphrey, 512 U.S. 477 (1994), or the pending

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class action in Gilman v. Davis, No. Civ. S-05-830 LKK GGH.
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The Eleventh Amendment bars plaintiff’s claims for damages against defendants in their

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official capacities. Claims for damages against the state, its agencies or its officers for actions

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performed in their official capacities are barred under the Eleventh Amendment, unless the state

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waives its immunity. Kentucky v. Graham, 473 U.S. 159, 169, 105 S. Ct. 3099, 87 L. Ed. 2d 114

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(1985); see also Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (neither a state

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nor its officials acting in their official capacities are persons under § 1983). Section 1983 does

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not abrogate the states’ Eleventh Amendment immunity from suit. See Quern v. Jordan, 440

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U.S. 332, 344-45 (1979).

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Defendants are also immune from damages in their individual capacities. Parole board

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officials are entitled to absolute quasi-judicial immunity for decisions to “grant, deny, or revoke

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parole,” which are “functionally comparable to tasks performed by judges.” Swift v. California,

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384 F.3d 1184, 1189 (9th Cir. 2004) (internal quotation marks omitted); id. at 1191 (“[A]n

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official who adjudicates parole decisions is entitled to quasi-judicial immunity for those

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decisions, and actions integral to those decisions.”).

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Plaintiff’s claim for equitable relief in the form of allowing him to withdraw his guilty

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plea and be tried by a jury is barred by Heck. As a general rule, a challenge in federal court to

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the fact of conviction or the length of confinement must be raised in a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475 (1973). Where

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success in a section 1983 action would implicitly question the validity of a conviction, the

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plaintiff must first show that the underlying conviction was reversed on direct appeal, expunged

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by executive order, declared invalid by a state tribunal, or questioned by the grant of a writ of

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habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Muhammad v. Close, 540 U.S.

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749, 751 (2004). Plaintiff’s failure to do so in the instant case precludes him from collaterally

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challenging his underlying criminal conviction in this civil rights action.

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Additionally, plaintiff may not bring an individual suit seeking equitable relief within the
same subject matter of the class action in Gilman. Gilman is a class action challenging
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Proposition 9 as violating the Ex Post Facto Clause. The class in Gilman is comprised of

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California state prisoners who: (I) have been sentenced to a term that includes life; (ii) are

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serving sentences that include the possibility of parole; (iii) are eligible for parole; and (iv) have

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been denied parole on one or more occasions. Gilman v. Davis, No. Civ. S-05-830 LKK GGH,

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2009 U.S. Dist. LEXIS 21614 (E.D. Cal. Mar. 4, 2009), aff’d 2010 U.S. App. LEXIS 11319 (9th

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Cir. June 3, 2010). The Gilman plaintiffs seek declaratory and injunctive relief to cure the

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alleged violations. Gilman, 2009 U.S. Dist. LEXIS 21614, at *7.

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A plaintiff who is a member of a class action for equitable relief from prison conditions

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may not maintain a separate, individual suit for equitable relief involving the same subject matter

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of the class action. See Crawford v. Bell, 599 F.2d 890, 892-93 (9th Cir. 1979); see also McNeil

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v. Guthrie, 945 F.2d 1163, 1165 (10th Cir. 1991) (“Individual suits for injunctive and equitable

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relief from alleged unconstitutional prison conditions cannot be brought where there is an

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existing class action.”); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988) (per curiam)

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(“To allow individual suits would interfere with the orderly administration of the class action and

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risk inconsistent adjudications.”).

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Accepting plaintiff’s allegations as true, he is a member of the Gilman class. Further, his

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complaint seeks equitable relief and involves the same subject matter of the class action. As a

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member of the Gilman class, plaintiff must bring his “[c]laims for equitable relief . . . through the

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class representative until the class action is over or the consent decree is modified.” McNeil, 945

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F.2d at 1166; Frost v. Symington, 197 F.3d 348, 359 (9th Cir. 1999) (inmate must bring equitable

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claims related to class action through class counsel); Crawford, 599 F.2d at 892-93. See also

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Rodgers v. Swarthout, No. Civ. S. 10-0581 JAM GGH P, 2010 U.S. Dist. LEXIS 87013 (E.D.

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Cal. Aug 24, 2010) (striking petitioner’s claims regarding Marsy’s Law and parole eligibility,

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without prejudice to resolution in the Gilman class action).

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Because plaintiff seeks monetary relief from defendants who are immune from such relief
and otherwise fails state a claim upon which relief may be granted, this action must be
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dismissed, and leave to amend appears to be futile. See Silva v. Di Vittorio, 658 F.3d 1090, 1105

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(9th Cir. 2011) (“Dismissal of a pro se complaint without leave to amend is proper only if it is

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absolutely clear that the deficiencies of the complaint could not be cured by amendment.”

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(internal quotation marks omitted)); Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A]

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district court should grant leave to amend even if no request to amend the pleading was made,

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unless it determines that the pleading could not be cured by the allegation of other facts.”).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (Dckt. No. 8) is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in

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accordance with the notice to the Director of the California Department of Corrections and

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Rehabilitation filed concurrently herewith.

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3. Plaintiff’s request for appointment of counsel (Dckt. No. 2) is denied.

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4. The complaint is dismissed for failure to state a claim.

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5. The Clerk is directed to close this case.

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DATED: August 2, 2012.

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