Herships v. State of California, et al

Filing 6

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/29/2014 GRANTING 2 Motion to Proceed In Forma Pauperis, DENYING 4 Motion for Appointment of a three-judge panel and RECOMMENDING that this action be dismissed. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HOWARD HERSHIPS,

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Plaintiff,

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No. 2:14-cv-0089 KJM CKD PS

v.

ORDER AND

STATE OF CALIFORNIA, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff is proceeding in this action pro se. Plaintiff has requested authority pursuant to

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28 U.S.C. § 1915 to proceed in forma pauperis.1 This proceeding was referred to this court by

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Local Rule 302(c)(21).
Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff is unable

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to prepay fees and costs or give security for them. Accordingly, the request to proceed in forma

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pauperis will be granted. 28 U.S.C. § 1915(a).
The federal in forma pauperis statute authorizes federal courts to dismiss a case if the

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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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Plaintiff has also requested appointment under 28 U.S.C. § 2284 of a three judge panel to
preside over this action. In the circumstances of this case, appointment of a three judge panel is
not warranted.
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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(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 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where 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.
In ruling on plaintiff‟s motion for a temporary restraining order, the District Court has

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held that the injunctive relief plaintiff seeks in this action is barred under Younger v. Harris, 401

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U.S. 37 (1971). See ECF No. 5. In Younger, the Supreme Court recognized the “longstanding

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public policy against federal court interference with state court proceedings . . .” and reversed the

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District Court‟s enjoining of a prosecution against Harris for violations of California‟s criminal

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syndicalism statutes. Younger, 401 U.S. at 43, 54. Subsequent cases have distilled the principles

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of Younger into a three-part test: a federal court should abstain from adjudicating a lawsuit if (1)

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there are pending state judicial proceedings, (2) the state proceedings implicate important state

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interests, and (3) the state proceedings provide an adequate opportunity to raise federal questions.

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Middlesex County Ethics Comm. v. Garden State Bar Ass‟n, 457 U.S. 423, 432 (1982).
Whether a state action is “pending” for Younger purposes is not determined by a simple

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comparison of filing dates. Polykoff v. Collins, 816 F.2d 1326, 1332 (9th Cir. 1987). If the state

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action was filed before the federal case proceeded beyond an embryonic stage or the federal court

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has conducted any proceedings on the substance of the merits of the case, the first Younger

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requirement is met. Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 238 (1984); Doran v.

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Salem Inn, Inc., 422 U.S. 922, 929 (1975). Neither the denial of a temporary restraining order,

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nor service of the complaint, nor the determination of a motion for a preliminary injunction

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without a hearing constitute proceedings of substance on the merits of the action. Hicks v.

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Miranda, 422 U.S. 332, 338-39 (1975); Polykoff, 816 F.2d at 1332. In this case, the state

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proceedings regarding plaintiff‟s red light traffic infraction were initiated prior to the filing of

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plaintiff‟s federal complaint, with a trial date set of January 30, 2014.2 The state court action is

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therefore “pending” for purposes of Younger abstention.

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In Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975), the U.S. Supreme Court held that

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even where the appellee‟s trial was over by the time Pursue brought its federal complaint, a losing

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party like Pursue must exhaust its state appellate remedies before seeking relief in the federal

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court, unless an exception to Younger applies. In World Famous Drinking Emporium, Inc. v.

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Tempe, 820 F.2d 1079, 1082 (9th Cir. 1987), the Ninth Circuit held, for Younger abstention

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purposes, exhaustion of state appellate remedies did not occur until the losing party appealed the

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adverse rulings to the state Supreme Court. Failure to exhaust state appellate remedies satisfies

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the requirement of ongoing state proceedings. Id. Plaintiff‟s pleadings do not show he has

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exhausted his state appellate remedies. The first requirement of Younger thus has been met.

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Younger held that interference with a state criminal prosecution would disrupt the

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exercise of a basic state function, “prohibiting the State from carrying out the important and

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necessary task of enforcing these laws against socially harmful conduct that the State believes in

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good faith to be punishable under its laws and Constitution.” Younger, 401 U.S. at 51-52. A

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prosecution for red light violations implicates important state interests. Given the importance of

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the state‟s interest in traffic control and safe driving, the second requirement of Younger

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abstention has been met.
“Where valid state interests are involved, a federal court should abstain „unless state law

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clearly bars the interposition of constitutional claims.‟” Middlesex County Ethics Comm., 457

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U.S. at 432 (internal citation omitted). Federal plaintiffs “need be accorded only an opportunity

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to fairly pursue their constitutional claims in the ongoing state proceedings. . . .” Juidice v. Vail,

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430 U.S. 327, 337 (1977); Communications Telesystems International v. California Public

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Utility Commission, 196 F.3d 1011, 1019-20 (9th Cir. 1999). Plaintiff‟s pleadings do not

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demonstrate any procedural bar to the state court‟s considering his constitutional claims in the

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The complaint appears to have a typographical error wherein a trial date of January 30, 2013 is
referenced. Plaintiff‟s motion for temporary restraining order indicates trial on plaintiff‟s red
light infraction is scheduled for January 30, 2014.
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pending state proceeding. See People ex rel. State Air Resources Board v. Wilmshurst, 68 Cal.

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App. 4th 1332, 1333-34 (3d Dist. 1999) (considering preemption defense to state proceedings for

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emissions violations). Thus the third requirement of Younger is met as well.

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Plaintiff‟s pleadings present no extraordinary circumstances that warrant an exception to

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Younger abstention. See Younger, 401 U.S. at 53-54 (extraordinary circumstances might be

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present where a state statute being enforced violates the United States Constitution in every

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clause, sentence and paragraph); see also Kugler v. Helfant, 421 U.S. 117, 124-125 (1975)

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(Younger abstention should not be applied when extraordinary circumstances make it impossible

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for the state court to fairly and fully adjudicate the federal issues before it). There is no basis for

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concluding the state court cannot fairly resolve plaintiff‟s claims. Younger abstention requires

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this court to defer to the state proceedings. This action should therefore be dismissed.

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

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1. Plaintiff‟s request to proceed in forma pauperis is granted;

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2. Plaintiff‟s motion for appointment of a three judge panel (ECF No. 4) is denied; and

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IT IS HEREBY RECOMMENDED that this action be dismissed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 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 and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge‟s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court‟s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: January 29, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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