Brand v. Schubert, et al.

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/6/17 ORDERING that plaintiff's request to proceed in forma pauperis (ECF No. 2 ) is GRANTED. Plaintiff shall pay the statutory filing fee of $350. The complaint is DISMISSED with leave to amend within 30 days. Plaintiff's petition for writ of mandate (ECF No. 6 ) is DENIED.(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 R. BRAND,

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Plaintiff,

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No. 2:16-cv-1811-MCE-EFB P

v.
ANNE MARIE SCHUBERT, et al.,

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ORDER GRANTING IFP AND SCREENING
COMPLAINT PURSUANT TO 28 U.S.C. §
1915A

Defendants.

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Plaintiff is a county inmate proceeding without counsel in an action brought under 42

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U.S.C. § 1983. He seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and

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has filed what he styles as a petition for a writ of mandate.

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I.

Request to Proceed In Forma Pauperis
Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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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.

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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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include 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 Atl. Corp. v.

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

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

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678.

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Furthermore, a claim upon which the court can grant relief must have 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, 556 U.S. at 678. 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, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

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

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III.

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Screening Order
The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and finds it

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must be dismissed. From the face of the complaint it is clear that plaintiff is suing defendants

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who are immune from suit, and further, his allegations simply fail to state a claim. Plaintiff

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alleges that his criminal defense attorneys are not raising certain issues in his defense and have
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committed perjury by raising doubts as to his competency to stand trial. In addition to damages,

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plaintiff requests that this court stay the competency proceedings in state court and order his

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immediate release from confinement. Plaintiff names as defendants his defense attorneys, the

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Sacramento County District Attorney, a Deputy District Attorney, two judges of the Sacramento

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County Superior Court, the County of Sacramento, and the State of California.

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To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal

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constitutional or statutory right; and (2) that the violation was committed by a person acting under

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the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

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930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the

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facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

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connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

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See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

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(9th Cir. 1978). Plaintiff may not sue any official on the theory that the official is liable for the

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unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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He must identify the particular person or persons who violated his rights. He must also plead

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facts showing how that particular person was involved in the alleged violation.

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Plaintiff’s court-appointed attorneys cannot be sued under § 1983. See Polk County v.

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Dodson, 454 U.S. 312, 318-19 (1981) (public defenders do not act under color of state law for

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purposes of § 1983 when performing a lawyer’s traditional functions). And any potential claims

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for legal malpractice do not come within the jurisdiction of the federal courts. Franklin v.

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Oregon, 662 F.2d 1337, 1344 (9th Cir.1981). State prosecutors are also entitled to absolute

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prosecutorial immunity for acts taken in their official capacity. See Kalina v. Fletcher, 522 U.S.

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118, 123–24 (1997); Buckley v. Fitzsimmons, 509 U.S. 259, 269–70 (1993); Imbler v. Pachtman,

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424 U.S. 409, 427, 430–31 (1976) (holding that prosecutors are immune from civil suits for

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damages under § 1983 for initiating prosecutions and presenting cases). In addition, “[j]udges are

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absolutely immune from damage actions for judicial acts taken within the jurisdiction of their

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courts . . . A judge loses absolute immunity only when [the judge] acts in the clear absence of all

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jurisdiction or performs an act that is not judicial in nature.” Schucker v. Rockwood, 846 F.2d

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1202, 1204 (9th Cir. 1988) (per curiam).

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In addition, the State of California is not a “person” within the meaning of § 1983 and is

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immune from suit under the Eleventh Amendment. Will v. Michigan Dep’t of State Police, 491

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U.S. 58, 66 (1989); see also Hafer v. Melo, 502 U.S. 21, 30 (1991) (clarifying that Eleventh

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Amendment does not bar suits against state officials sued in their individual capacities, nor does it

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bar suits for prospective injunctive relief against state officials sued in their official capacities).

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Moreover, a municipal entity (such as Sacramento County) or its departments is liable

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under section 1983 only if plaintiff shows that his constitutional injury was caused by employees

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acting pursuant to the municipality’s policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v.

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Doyle, 429 U.S. 274, 280 (1977); Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658,

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691 (1978); Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 964 (9th Cir. 2008). Local

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government entities may not be held vicariously liable under section 1983 for the unconstitutional

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acts of its employees under a theory of respondeat superior. See Board of Cty. Comm'rs. v.

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Brown, 520 U.S. 397, 403 (1997).

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Plaintiff’s requests for equitable relief are also improper. First, he asks this court to stay

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state court proceedings regarding his competency to stand trial. Such an order is barred by

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Younger v. Harris, 401 U.S. 37 (1971). Federal courts may not enjoin pending state criminal

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proceedings except under extraordinary circumstances. Id. at 49, 53. No facts demonstrating

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such extraordinary circumstances are alleged here. Second, plaintiff asks for immediate release

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from the state’s custody. That claim, too, is barred. Claims that, if successful, would secure a

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plaintiff’s immediate release, fall within the “core of habeas” and cannot be brought in a § 1983

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action. See Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003). The Ninth Circuit has recently

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clarified that “habeas is available only for state prisoner claims that lie at the core of habeas (and

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is the exclusive remedy for such claims), while § 1983 is the exclusive remedy for state prisoner

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claims that do not lie at the core of habeas.” Nettles v. Grounds,

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LEXIS 13573 * 20, 2016 WL 3997255 (9th Cir. 2016).1 Accordingly, this section 1983 suit is an

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inappropriate vehicle for seeking release from custody.

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F.3d

, 2016 U.S. App.

Plaintiff will be granted leave to file an amended complaint, if he can allege a cognizable

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legal theory against a proper defendant and sufficient facts in support of that cognizable legal

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theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must

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afford pro se litigants an opportunity to amend to correct any deficiency in their complaints).

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Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set

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forth the claims and allegations against each defendant. Any amended complaint must cure the

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deficiencies identified above and also adhere to the following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation).

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It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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“[T]he general grant of habeas authority in Section 2241 is available for challenges by a
state prisoner who is not in custody pursuant to a state court judgment – for example, a defendant
in pre-trial detention[.]” Stow v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004).
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The court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed

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with prejudice. See E.D. Cal. Local Rule 110.

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IV.

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Petition for Writ of Mandate
Plaintiff also seeks a writ of mandate to compel the state court to dismiss one of his

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“enhancing priors.” ECF No. 6 at 3. In addition to the bar of Younger v. Harris to interfering

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with a pending state court criminal proceeding, federal courts are not the proper venue for

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plaintiff to proceed with an appeal of a ruling by a state court. Further, in a federal mandamus

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action, the court can only issue orders against employees, officers or agencies of the United

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States. See 28 U.S.C. § 1361. Thus, the court cannot issue a writ of mandamus commanding

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state courts to act in accordance with plaintiff’s requests. See Demos v. United States Dist. Court

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for the E. Dist. of Wash., 925 F.2d 1160, 1161 (9th Cir. 1991); Clark v. Washington, 366 F.2d

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678, 681-82 (9th Cir. 1966). Therefore, the court cannot afford plaintiff the relief he requests. If

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plaintiff contends that he is in custody in violation of the Constitution or laws or treaties of the

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United States, he may commence a new action by filing an application for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254.

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V.

Summary of Order
Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted.

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

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in accordance with the notice to the Sacramento County Sheriff filed concurrently

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herewith.

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3. The complaint is dismissed with leave to amend within 30 days. The complaint

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must bear the docket number assigned to this case and be titled “Amended

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Complaint.” Failure to comply with this order will result in dismissal of this

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action for failure to prosecute. If plaintiff files an amended complaint stating a

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cognizable claim the court will proceed with service of process by the United

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States Marshal.
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4. Plaintiff’s “petition for writ of mandate” (ECF No. 6) is denied.
Dated: February 6, 2017.

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