Bird v. Skillman, et al.

Filing 11

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 2/3/17 recommending that this action be dismissed. F&R referred to Judge Garland E. Burrell, Jr. Objections to F&R due within 14 days. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONALD M. BIRD,
Plaintiff,

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No. 2:16-cv-2352-GEB-CMK

vs.

FINDINGS AND RECOMMENDATION

SKILLMAN, et al.,
Defendants.
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Plaintiff, proceeding pro se, brings this civil action. Pending before the court is
plaintiff’s complaint (Doc. 1) and a motion to transfer to another judge (Doc. 6).
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. See 28 U.S.C.

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§ 1915A(a). The court is also required to screen complaints brought by litigants who have been

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granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under these screening

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provisions, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B) and

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1915A(b)(1), (2). Moreover, pursuant to Federal Rule of Civil Procedure 12(h), this court must
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dismiss an action “[w]henever it appears . . . that the court lacks jurisdiction of the subject matter

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. . . .” Because plaintiff, who is not a prisoner, has been granted leave to proceed in forma

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pauperis, the court will screen the complaint pursuant to § 1915(e)(2).

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The Federal Rules of Civil Procedure require that complaints contain a “short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).

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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,

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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied

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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon

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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). “Although a pro se

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litigant . . . may be entitled to great leeway when the court construes his pleadings, those

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pleadings nonetheless must meet some minimum threshold in providing a defendant with notice

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of what it is that it allegedly did wrong.” Brazil v. U.S. Dep’t of Navy, 66 F.3d 193, 199 (9th

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Cir. 1995).

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In order to survive dismissal for failure to state a claim, a complaint must contain

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more 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.” ” Bell Atlantic Corp.

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v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964 (2007). While “[s]pecific facts are not

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necessary; the statement [of facts] need . . . . give the defendant fair notice of what the . . . claim

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is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200

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(2007) (internal quotes omitted). In reviewing a complaint under this standard, the court must

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

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

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff’s complaint is unclear. It appears plaintiff is attempting to challenge a

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citation he received in Tehama County for fishing without a license. Plaintiff alludes to some

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type of trial before Judge Skillman, named as a defendant to this action, wherein it appears
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plaintiff was fined $790.00 for fishing without a license, first offense. He also mentions

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attempting to challenge the requirement for a California Driver’s License, or the suspension

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thereof, for failure to pay the above mentioned fine.

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II. DISCUSSION

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Although the complaint is vague, it appears this is plaintiff’s second attempt at

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challenging his citation for fishing without a license. In plaintiff’s prior case1, Bird v. County of

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Tehama, et al., case number 2:13-cv-2549-MCE-CKD, the court found the complaint vague and

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conclusory, and informed plaintiff that such a complaint was insufficient. That case, which also

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appeared to challenge his conviction for unlawful fishing, was dismissed as barred under Heck v.

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Humphrey, 512, U.S. 477 (1994). Despite the court’s caution, the complaint filed in this case is

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just as vague and conclusory as the complaint filed in plaintiff’s prior action.
The Federal Rules of Civil Procedure require that complaints contain a “short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).

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This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne,

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84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied

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if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon

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which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). “Although a pro se

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litigant . . . may be entitled to great leeway when the court construes his pleadings, those

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pleadings nonetheless must meet some minimum threshold in providing a defendant with notice

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of what it is that it allegedly did wrong.” Brazil v. U.S. Dep’t of Navy, 66 F.3d 193, 199 (9th

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Cir. 1995).
Here, Plaintiff’s complaint does not include a short and plain statement of the

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claim, and is almost unintelligible. The complaint therefore fails to meet the pleading

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A court may take judicial notice of court records. See MGIC Indem. Co. v.
Weisman, 803 F.2d 500, 504 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th
Cir. 1980).
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requirements of Rule 8. Plaintiffs’ statements are simply too vague and conclusory for the court

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to determine whether this action is frivolous, fails to state a claim for relief, or is barred by res

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judicata.

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Two related doctrines of preclusion are grouped under the term “res judicata.”

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See Taylor v. Sturgell, 553 U.S. 880, 128 S. Ct. 2161, 2171 (2008). One of these doctrines –

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claim preclusion – forecloses “successive litigation of the very same claim, whether or not

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relitigation of the claim raises the same issues as the earlier suit.” Id. Stated another way,

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“[c]laim preclusion. . . bars any subsequent suit on claims that were raised or could have been

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raised in a prior action.” Cell Therapeutics, Inc. v. Lash Group, Inc., 586 F.3d 1204, 1212 (9th

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Cir. 2009). “Newly articulated claims based on the same nucleus of facts are also subject to a

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res judicata finding if the claims could have been brought in the earlier action.” Stewart v. U.S.

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Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). Thus, claim preclusion prevents a plaintiff from

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later presenting any legal theories arising from the “same transactional nucleus of facts.” Hells

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Canyon Preservation Council v. U.S. Forest Service, 403 F.3d 683, 686 n.2 (9th Cir. 2005). The

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second – issue preclusion – “bars successive litigation of an issue of fact or law actually litigated

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and resolved in a valid court determination essential to the prior judgment, even if the issue

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recurs in the context of a different claim.” Taylor, 128 S. Ct. at 2171 (internal citation, quotation

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omitted). As it appears plaintiff is attempting to challenge the same underlying conviction for

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unlawful fishing that he was challenging in his prior case, it would appear this case is likely

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barred by res judicata.

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Regardless, the undersigned finds, as was found in plaintiff’s prior case, that his

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attempt to challenge his conviction for unlawful fishing in an action under 42 U.S.C. § 1983 is

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barred by Heck. In Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court

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held that a suit for damages on a civil rights claim concerning an allegedly unconstitutional

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conviction or imprisonment cannot be maintained absent proof “that the conviction or sentence

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has been reversed on direct appeal, expunged by executive order, declared invalid by a state
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tribunal authorized to make such determination, or called into question by a federal court’s

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issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck, 512 U.S. at 486. Under Heck, the

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court is required to determine whether a judgment in plaintiff’s favor in this case would

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necessarily invalidate his conviction or sentence. Id. If it would, the complaint must be

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dismissed unless the plaintiff can show that the conviction or sentence has been invalidated. The

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undersigned finds that plaintiff’s action implicates the validity of his conviction for unlawful

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fishing and is thus barred by Heck. Plaintiff will be afforded an opportunity to show that the

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conviction has been invalidated in his response to these findings and recommendation.

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III. REQUEST TO TRANSFER

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Frustrated with the length of time the court has taken to address plaintiff’s

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complaint, he has requested the transfer of this action to another judge. Plaintiff offers no

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adequate grounds for the removal of the undersigned from this case, such as bias or prejudice

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pursuant to 28 U.S.C. § 144. To the extent plaintiff was attempting to bring a motion to

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disqualify the undersigned, the request as filed is insufficient. To be sufficient, such a motion

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must state facts which, if true, fairly support the allegation of bias or prejudice which stems from

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an extrajudicial source and which may prevent a fair decision. See U.S. v. Azhocar, 581 F.2d

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735, 740-41 (1976). The Supreme Court in Berger also held that adverse rulings alone cannot

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constitute the necessary showing of bias or prejudice. See Berger v. United States, 255 U.S. 22,

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34 (1922). There are simply no grounds on which to grant plaintiff’s request.

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IV. CONCLUSION
The undersigned finds this action is likely barred by res judicata and is barred by

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Heck v. Humphrey, 512 U.S. 477 (1994) as a judgment in plaintiff’s favor in this case would

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implicate the validity of the underlying conviction he is challenging. Plaintiff may be heard on

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these issues by filing objections to these findings and recommendation. If plaintiff files

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objections to these findings and recommendations, he will also be required to address the lack of

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factual allegations sufficient to state a claim if any leave to amend is to be considered.
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However, it does not appear possible that the deficiencies identified herein can be

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cured by amending the complaint. Therefore, plaintiff is not entitled to leave to amend at this

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time. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc).

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Based on the foregoing, the undersigned recommends that this action be
dismissed.

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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 14 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. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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

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DATED: February 3, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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