Tidwell v. Vestito

Filing 6

ORDER signed by Magistrate Judge Deborah Barnes on 10/19/17 granting 2 Motion to Proceed IFP. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees shall be paid in accordance with the court's CDC order filed concurrently herewith. This action is dismissed without leave to amend for failure to state a cognizable claim. CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JUAN M. TIDWELL,

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Plaintiff,

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No. 2:16-cv-2529 DB P

v.

ORDER

C. VESTITO,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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Plaintiff has consented to the jurisdiction of a magistrate judge. (ECF No. 3.)

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I.

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Application to Proceed In Forma Pauperis
Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §

1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

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of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.
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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. §

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1915(b)(2).

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II.

Screening Requirement
The in forma pauperis statute provides, “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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III.

Pleading Standard
Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or

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immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.

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Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights conferred

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elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a

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right secured by the Constitution or laws of the United States was violated and (2) that the alleged

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

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matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial

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plausibility demands more than the mere possibility that a defendant committed misconduct and,

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while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

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IV.

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Plaintiff’s Allegations
Plaintiff is a state inmate housed at California Training Facility in Soledad, California. He

names a single defendant, Casey Vestito, the court reporter during plaintiff’s 2006 criminal trial.

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Plaintiff’s allegations may be fairly summarized as follows:

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The victim testimony transcribed by defendant Vestito in Sacramento Superior Court Case

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No. 05-F8989, was incomplete, resulting in plaintiff’s 2006 conviction and sentence. Through

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appeals of his state conviction and related habeas petitions, plaintiff has sought defendant’s

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shorthand notes of the proceedings. These efforts proved unsuccessful.

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Plaintiff brings a due process claim premised on defendant’s omission during the

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transcribing process of key testimony from the victim. Plaintiff claims this omission resulted in

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plaintiff’s erroneous conviction and sentence. He seeks injunctive relief in the form of a release of

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defendant’s shorthand notes and any and all audio and/or video of the proceedings in question.

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V.

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Discussion
Plaintiff’s claim is inappropriate under § 1983 since it appears he is challenging the fact of

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his incarceration. “[W]hen a state prisoner is challenging the very fact or duration of his physical

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imprisonment, and the relief he seeks is a determination that he is entitled to immediate or a

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speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”

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Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). If plaintiff seeks to make a collateral attack on

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his trial and imprisonment, the action should have been filed pursuant to 28 U.S.C. § 2254.

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It appears, though, that plaintiff previously brought a habeas petition related to

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defendant’s alleged omission of critical information concerning the victim’s testimony. In a

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petition for writ of habeas corpus filed in this court, Tidwell v. Knipp, 2:11-cv-0489 JKS, plaintiff

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asserted a number of claims, including an ineffective assistance of counsel claim premised on the

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purportedly omitted portion of the victim’s testimony. There, plaintiff also filed a motion to

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compel discovery seeking, inter alia, a copy of the court reporter’s shorthand notes. Plaintiff’s

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motion to compel was denied (Id. ECF No. 5). Additionally, his petition for writ of habeas corpus

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was denied after it was determined that, even if the alleged portion of the victim’s testimony was

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omitted, that portion would only have supported plaintiff’s guilty verdicts. Order Denying Pl.’s
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Pet. for Writ of Habeas Corpus at 27-28 (Id. ECF No. 49). Plaintiff’s motion for certificate of

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appealability was then denied by both the district court and the Ninth Circuit Court of Appeals.

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(Id. ECF Nos. 49, 59.)

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Assuming here that plaintiff were to refile his complaint as a habeas petition, it is evident

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that plaintiff’s claim is duplicative of that asserted and denied in Tidwell v. Knipp, 2:11-cv-0489

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JKS. Any proposed petition would therefore constitute a second or successive petition seeking

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habeas relief.

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Plaintiff is forewarned that the provisions of the Antiterrorism and Effective Death

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Penalty Act of 1996 (AEDPA) apply to any petition filed after April 24, 1996. Lindh v. Murphy,

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521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). When AEDPA applies, a federal

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court must dismiss a second or successive petition that raises the same grounds as a prior petition.

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28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive petition raising a new

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ground unless the petitioner can show that (1) the claim rests on a new retroactive constitutional

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right, or (2) the factual basis of the claim was not previously discoverable through due diligence,

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and the new facts establish, by clear and convincing evidence, that but for the constitutional error,

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no reasonable factfinder would have found the applicant guilty of the underlying offense. 28

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U.S.C. § 2244(b)(2)(A) and (B).

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The circuit court of appeals, not the district court, must decide whether a second or

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successive petition satisfies the statutory requirements to proceed. 28 U.S.C. § 2244(b)(3)(A)

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(“Before a second or successive petition permitted by this section is filed in the district court, the

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applicant shall move in the appropriate court of appeals for an order authorizing the district court

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to consider the application”). This means that a petitioner may not file a second or successive

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petition in district court until he has obtained leave from the court of appeals. Felker v. Turpin,

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116 S. Ct. 2333, 2336-37 (1996). In the absence of an order from the appropriate circuit court, a

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district court lacks jurisdiction over the petition and must dismiss the second or successive

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petition. Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir.1997).

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VI.

Conclusion

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

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

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. §

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1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith; and

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3. This action is dismissed without leave to amend for failure to state a cognizable claim.
Dated: October 19, 2017

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/DLB7;
DB/Inbox/Substantive/tidw2529.scrn

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