Peck v. Naman et al

Filing 6

ORDER ; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/26/16 ORDERING that plaintiff's motion for leave to proceed in forma pauperis (ECF No. 2 ) is DENIED as moot; and it is RECOMMENDED that this action be dismissed without leave to file an amended complaint. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES ROBERT PECK, JR.,

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No. 2:16-cv-0736 KJM KJN P

Plaintiff,
v.

ORDER and

CALIFORNIA VICTIM
COMPENSATION & GOVERNMENT
CLAIMS BOARD (CVCGB)
EXECUTIVE DIRECTOR, JULIE
NAMAN, et al.,

FINDINGS AND RECOMMENDATIONS

Defendants.

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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983, and

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requests authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. This proceeding

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was referred to this court by Local Rule 302 and 28 U.S.C. § 636(b)(1).

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Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).

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For the reasons set forth below, the undersigned recommends that this action be summarily

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dismissed without leave to amend, and, accordingly, no filing fee will be assessed at this time.

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Plaintiff’s motion to proceed in forma pauperis is denied as moot.

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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 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. 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); Franklin, 745 F.2d at 1227.

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Here, plaintiff names Julie Naman, Executor Officer of the CVCGB, and Scott Kernan,

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Superintendent of Prisons, California Department of Corrections and Rehabilitation (“CDCR”),

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as defendants in this action, and seeks injunctive relief prohibiting defendants from seizing

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monies from his inmate trust account. Plaintiff claims that during his sentencing hearing on

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November 5, 2009, “there was some discussion regarding plaintiff . . . being assessed restitution

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in the amount of $17,277.26” to the CVCGB, but that “no legally binding court order actually

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transpired.” (ECF No. 1 at 10.) Plaintiff claims that he had the right to a hearing to dispute the

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amount of restitution, and complains that the CDCR “illegally seizes 55% of plaintiff’s income

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regardless of which facility he may be housed at.” (ECF No. 1 at 1.) Plaintiff argues that the

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taking of these funds from his inmate trust account without a court order violates his Fourteenth

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Amendment right to due process. In addition to injunctive relief, plaintiff seeks money damages.

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(ECF No. 1 at 11.)

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In Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court held that in

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order to recover damages for an allegedly unconstitutional conviction or imprisonment, or for

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other harm caused by actions whose unlawfulness would render a conviction or sentence invalid,

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a plaintiff must prove that the conviction or sentence has been reversed on direct appeal,

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expunged by executive order, declared invalid by a state tribunal authorized to make such

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determination, or called into question by a federal court’s issuance of a writ of habeas

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corpus. Id. at 486-87. A claim for damages arising from a conviction or sentence that has not
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been so invalidated is not cognizable under section 1983. Heck, 512 U.S. at 486-87.

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When a state prisoner seeks damages in a section 1983 suit, the district court must

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consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of the

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continued confinement; if it would, the complaint must be dismissed unless the plaintiff can

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demonstrate that the conviction or sentence has already been invalidated. Id. at 487.

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Here, plaintiff is challenging the validity of the restitution aspect of his conviction, but the

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conviction has not been invalidated, so this claim must be dismissed. See Trimble v. City of

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Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (claims barred by Heck may be dismissed sua

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sponte without prejudice).

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In any event, the complaint does not warrant relief as state law provides for restitution.

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California Penal Code §§ 2085.5(a) and (b) permit the CDCR to deduct up to 50% of a prisoner’s

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wage and trust account deposits and use those funds to pay off that prisoner’s restitution. The

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entirety of this 50% deduction must be applied to that prisoner’s restitution. California Penal

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Code § 2085.5(c) permits CDCR to deduct an additional amount, up to 10% of the amount

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deducted under subdivision (a) or (b), as an administrative fee. Thus, one subdivision authorizes

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a 50% deduction that is applied toward restitution and an entirely separate subdivision authorizes

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an additional deduction that is paid as an administrative fee. The amount of the second deduction

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is equal to 10% of the amount of the first deduction. Therefore, if the prison deducts 50% under

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subdivision (a) or (b) for restitution, subdivision (c) authorizes prison officials to deduct an

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additional 10% of that amount. The two amounts taken together would add up to 55% of the

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wage and trust account deposit as in plaintiff’s case. Accordingly, to the extent plaintiff

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challenges the withdrawal of 55% of his income, such allegation is unavailing.

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Moreover, substantive and procedural due process challenges to Section 2085.5 have been

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routinely rejected by the courts, which have found that the statute is “rationally related to

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legitimate state interests in compensating crime victims,” and because “the deductions were

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effected by a valid act of the California legislature and the legislative process.” See Craft v.

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Ahuja, 475 F. App’x 649, 650 (9th Cir. 2012);1 accord Abney v. Alameida, 334 F. Supp. 2d 1221

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(S.D. Cal. 2004) (rejecting plaintiff’s due process and equal protection claims on the ground that

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“[p]laintiff has not, and cannot, allege that the deduction of money to satisfy the victim restitution

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order is not a legitimate interest of the State of California.”); Thompson v. Swarthout, 2012 WL

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1682029, *3 (E.D. Cal. 2012) (no cognizable claim for relief under the Fourteenth Amendment)

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(citing cases). In addition, to the extent that plaintiff challenges his underlying obligation to pay

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his restitution fine, there is no basis for a takings challenge. See Abney, 334 F. Supp. 2d at 1229

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(explaining that “[u]nlike the ordinary situation where the government takes property for public

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use without a prior relationship to the owner of the property, [Abney] is subject to the regulatory

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scheme here only as a result of a criminal conviction entered against him and the subsequent

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collection of a related civil judgment, and he retains the full measure of his rights to challenge the

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imposition and execution of the civil judgement”).
Finally, plaintiff’s claim that no valid order supports the “seizing” of these “monies” from

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his account is also unavailing. Because the underlying criminal trial record was lodged with the

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court in connection with his habeas petition, the court confirmed that plaintiff was present during

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sentencing when the trial court ordered restitution in the amount of $17, 277.00. People v. Peck,

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Case No. LF011459A (San Joaquin County Superior Court), Reporter’s Transcript at 735.2

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Plaintiff’s counsel objected to the restitution order. Id. at 736. The Clerk’s Minute Order

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confirms that the trial court ordered restitution in the amount of $17,277.00, and the abstract of

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judgment also reflects the restitution order. Id., Clerk’s Transcript at 576, 585.

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Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule
36-3(b).
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The record was lodged with this court on November 13, 2013, in Peck v. Foulk, No. 2:13-cv1265 JKS (E.D. Cal.). The petition was denied on the merits. Plaintiff did not include a
challenge to the restitution order in his habeas petition, or on direct appeal. Id., ECF No. 1;
Respondent’s Lodged Document 4. See also People v. Peck, 2011 WL 2929677 (3rd App. Dist.
Cal. July 21, 2011).
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For all of the above reasons, the court finds that the complaint fails to state a cognizable

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claim for relief, and that it would be futile to permit amendment. Therefore, the court

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recommends dismissal of this action without leave to amend.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in
forma pauperis (ECF No. 2) is denied as moot; and
IT IS RECOMMENDED that this action be dismissed without leave to file an amended
complaint.

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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: April 26, 2016

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/peck0736.56

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