Patterson v. People of the State of California

Filing 17

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/19/13 ORDERING that Plaintiffs request for leave to proceed in forma pauperis 13 is GRANTED; Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiffs April 15, 2013 motion 16 is DENIED; and it is RECOMMENDED that plaintiffs complaint be dismissed without prejudice. Referred to Judge John A. Mendez; 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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BRYAN DAMON PATTERSON,

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Plaintiff,

No. 2:12-cv-1973 JAM KJN P

vs.
THE PEOPLE OF THE STATE OF
CALIFORNIA,

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Defendants.
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FINDINGS AND RECOMMENDATIONS
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Plaintiff is a state prisoner proceeding without counsel. Plaintiff was directed to

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file a completed in forma pauperis affidavit and certified trust account statement. After receiving

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an extension of time, plaintiff filed the required documents.

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Plaintiff has submitted a declaration that makes the showing required by
28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action.

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28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing

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fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court

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will direct the appropriate agency to collect the initial partial filing fee from plaintiff’s prison

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trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to

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make monthly payments of twenty percent of the preceding month’s income credited to
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plaintiff’s prison trust account. These payments will be forwarded by the appropriate agency to

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the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the filing

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fee is paid in full. 28 U.S.C. § 1915(b)(2).

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The court is required to screen complaints brought by prisoners seeking relief

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

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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

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

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granted, or that seek monetary relief from a defendant who is immune from such relief.

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28 U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“a judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and

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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

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(1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Id. However,
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“[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair

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notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551

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U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal

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quotations marks omitted). In reviewing a complaint under this standard, the court must accept

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as true the allegations of the complaint in question, id., and construe the pleading in the light

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most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other

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grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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In 2009, plaintiff was convicted by a jury of two counts of second degree robbery

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and one count of assault, with a finding that he personally used a firearm in commission of the

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crimes. People v. Patterson, 2011 WL 3198793 (Cal. App. 1 Dist. 2011). By this civil rights

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action, plaintiff seeks dismissal of his criminal conviction, and immediate release from prison

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based on the alleged mishandling of evidence submitted at plaintiff’s criminal trial. (Dkt. No. 1,

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passim.)

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However, attempts to challenge the fact or duration of a prisoner’s incarceration

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must proceed by seeking habeas relief. When a state prisoner seeks “a determination that he is

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entitled to immediate release or a speedier release from . . . imprisonment, his sole federal

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remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). As a result,

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civil rights complaints seeking immediate or speedier release are barred by the doctrine of Heck

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v. Humphrey, 512 U.S. 477, 481 (1994). In Heck, the Court re-emphasized that a prisoner in

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state custody cannot use a civil rights action to challenge the fact or duration of his confinement.

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Id. at 481.

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A civil rights complaint seeking habeas relief should be dismissed without

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prejudice to bringing it as a petition for writ of habeas corpus. Trimble v. City of Santa Rosa, 49

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F.3d 583, 586 (9th Cir. 1995). However, plaintiff is presently challenging his 2009 conviction in

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Patterson v. People of the State of California, Case No. 2:12-cv-2475 KJM JFM (E.D. Cal.). It

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appears that plaintiff may have included these claims in the petition filed in Case No. 2:12-cv3

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2475 KJM JFM. However, to the extent such claims are not included, plaintiff must seek leave

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to amend to include such claims in Case No. 2:12-cv-2475 KJM JFM. Plaintiff is cautioned that

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once the district court has ruled on the merits of plaintiff’s habeas petition in Case No. 2:12-cv-

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2475 KJM JFM, plaintiff must move in the United States Court of Appeals for the Ninth Circuit

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for an order authorizing the district court to consider any second habeas application. 28 U.S.C.

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§ 2244(b)(3).

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For all of the above reasons, plaintiff’s complaint should be dismissed without
prejudice.

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In light of the above, plaintiff’s April 15, 2013 motion for the issuances of
summons is denied.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (dkt. no. 13) is

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granted;

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.

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Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith;

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3. Plaintiff’s April 15, 2013 motion (dkt. no. 16) is denied; and

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IT IS RECOMMENDED that plaintiff’s complaint be dismissed without

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prejudice.
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 fourteen

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days after being served with these findings and recommendations, plaintiff may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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DATED: April 19, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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patt1973.56

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