Lee v. State of California Attorney General

Filing 7

ORDER signed by Magistrate Judge Allison Claire on 11/9/2016 DENYING plaintiff's 2 motion to proceed IFP and no filing fee will be assessed at this time. This action is DISMISSED for failure to state a claim. CASE CLOSED.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KATRINA LEE,

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Plaintiff,

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No. 2:15-cv-2519 AC P

v.

ORDER

STATE OF CALIFORNIA ATTORNEY
GENERAL,
Defendant.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the undersigned magistrate judge for

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all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). ECF No. 4.

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I.

Application to Proceed In Forma Pauperis

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Plaintiff has submitted an incomplete application to proceed in forma pauperis. ECF No.

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2. However, the court will not request additional information nor assess a filing fee at this time.

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Instead, the undersigned will dismiss the complaint for the reasons now explained.

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II.

Statutory Screening of Prisoner Complaints
The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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A claim “is [legally] frivolous where 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). “[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.” Jackson v. Arizona,

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885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute

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on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490

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

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has an arguable legal and factual basis. Id.

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

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claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, 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. (citations

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omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that

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merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original)

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(quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ' 1216 (3d

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ed. 2004)).

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

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Atl. Corp., 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.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint

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under this standard, the court must accept as true the allegations of the complaint in question,

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Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading

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in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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III.

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Failure to State a Claim
Plaintiff alleges that after a civil case making unfounded allegations of elder abuse was

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closed, the California Attorney General brought criminal charges against her for elder abuse

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which led to the loss of her state and county contracts. ECF No. 1 at 3. Plaintiff seeks money

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damages for the loss of business and “expung[e]ment.” Id. at 4.

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Prosecutors are absolutely immune from civil suits for damages under § 1983 which
challenge the initiation and presentation of criminal prosecutions. Imbler v. Pachtman, 424 U.S.

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409, 431 (1976). “Thus, a prosecutor enjoys absolute immunity from a suit alleging that he

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maliciously initiated a prosecution.” Genzler v. Longanbach, 410 F.3d 630, 637 (9th Cir. 2005)

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(citing Imbler, 424 U.S. at 430); Lacey v. Maricopa County, 693 F.3d 986, 933 (9th Cir. 2012)

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(prosecutor would have been entitled to absolute immunity even if he had “filed a baseless

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information”). Plaintiff alleges that the California Attorney General initiated a baseless criminal

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prosecution against her. Such claims, even if true, are barred by absolute prosecutorial immunity

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and the complaint must be dismissed. To the extent plaintiff may be trying to challenge her

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confinement, a habeas corpus petition is the correct method for a prisoner to challenge the

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“legality or duration” of her confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991)

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(quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); 28 U.S.C. § 2254.

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IV.

No Leave to Amend
If the court finds that a complaint should be dismissed for failure to state a claim, the court

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has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 1124

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(9th Cir. 2000). Leave to amend should be granted if it appears possible that the defects in the

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complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31; see also Cato v.

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United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to

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amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that

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the deficiencies of the complaint could not be cured by amendment.”) (citing Noll v. Carlson, 809

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F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is clear that a
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complaint cannot be cured by amendment, the court may dismiss without leave to amend. Cato,

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70 F.3d at 1005-06.

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The undersigned finds that, for the reasons set forth above, the complaint fails to state a

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claim. The defendant named in the complaint has immunity to the type of claim plaintiff is trying

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to bring, and amendment would therefore be futile. “A district court may deny leave to amend

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when amendment would be futile.” Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013).

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V.

Summary
Even if plaintiff’s claim that the Attorney General brought unfounded criminal charges

against her is true, as a prosecutor the Attorney General has absolute prosecutorial immunity and
cannot be liable under § 1983 for initiating a criminal case against plaintiff.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The motion to proceed in forma pauperis (ECF No. 2) is denied and no filing fee will

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be assessed at this time.
2. This action is dismissed for failure to state a claim.
DATED: November 9, 2016

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