Azevedo v. Smith, et al.

Filing 21

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/5/2017 GRANTING 2 Motion to Proceed IFP; DENYING without prejudice 15 Motion to Appoint Counsel; and DISMISSING 1 Complaint with leave to amend within 30 days. Plaintiff to pay the statutory filing fee of $350. All payments to be collected in accordance with the notice to the Colusa County Sheriff filed concurrently herewith. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALEX LEONARD AZEVEDO, 12 Plaintiff, 13 14 No. 2:16-cv-2809-EFB P v. ALBERT SMITH, et al., 15 ORDER GRANTING IFP AND DISMISSING COMPLAINT WITH LEAVE TO AMEND PURSUANT TO 28 U.S.C. § 1915A Defendants. 16 Plaintiff, a county inmate proceeding without counsel in an action brought under 42 17 18 U.S.C. § 1983, seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 1 He also 19 seeks appointment of counsel. 20 I. Request to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 21 22 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 23 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 24 § 1915(b)(1) and (2). 25 ///// 26 ///// 27 28 1 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local Rules, Appx. A, at (k)(4). 1 1 II. Screening Requirement and Standards 2 Federal courts must engage in a preliminary screening of cases in which prisoners seek 3 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 5 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 6 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 7 relief.” Id. § 1915A(b). 8 9 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 10 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 11 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 12 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 13 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 14 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 15 U.S. 662, 679 (2009). 16 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 17 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 18 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 19 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 20 678. 21 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 22 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 25 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 26 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 27 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 28 ///// 2 1 2 III. Screening Order The court has reviewed plaintiff’s complaint for purposes of 28 U.S.C. § 1915A. Plaintiff 3 alleges that defendant Smith, his court appointed attorney, has poorly represented him in his 4 criminal cases by embarrassing him in court and by failing to file appeals or to provide plaintiff 5 with requested paperwork. Plaintiff claims Smith’s failings have ultimately caused him to serve 6 more time in custody. ECF No. 1 at 3, 9-10.2 Plaintiff further alleges that defendant King, of the 7 Colusa County Sheriff’s Department, has altered documents in order to manipulate the system 8 and cause plaintiff to serve more time in custody. He also claims that she “messes” with his mail. 9 Id. at 4, 14. Plaintiff claims that defendant Rainsbarger, his probation officer, has lied in 10 probation reports and placed warrants out for plaintiff’s arrest after plaintiff had already been 11 arrested in an effort to cause plaintiff “to serve a longer sentence.” Id. at 5, 11. Plaintiff also 12 claims that defendant Patterson, a police officer, arrested him and lied about the circumstances of 13 the arrest “out of retaliation.” Id. at 12-13. Plaintiff seeks damages for “[defamation], poor 14 representation and illegal imprisonment, and harassment.” Id. at 6. As discussed below, the 15 complaint names improper defendants, fails to state a proper claim for relief under the applicable 16 standards, and will be dismissed with leave to amend. 17 First, plaintiff’s court appointed attorney, defendant Smith, cannot be sued under § 1983. 18 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a 19 right secured by the Constitution or laws of the United States was violated, and (2) that the 20 alleged violation was committed by a person acting under the color of state law. West v. Atkins, 21 487 U.S. 42, 48 (1988). “[A] public defender does not act under color of state law when 22 performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” 23 See Polk County v. Dodson, 454 U.S. 312, 325 (1981). Because plaintiff’s claims against 24 defendant Smith are based on Smith’s allegedly poor representation of plaintiff in a criminal case, 25 Smith was not acting under color of state law, and plaintiff cannot bring a claim for damages 26 against Smith pursuant to § 1983. Furthermore, any potential claims for state law defamation or 27 2 28 This and subsequent page number citations to plaintiff’s complaint are to the page number reflected on the court’s CM/ECF system and not to page numbers assigned by plaintiff. 3 1 legal malpractice do not come within the jurisdiction of the federal courts. Franklin v. Oregon, 2 662 F.2d 1337, 1344 (9th Cir. 1981). 3 Second, defendant Rainsbarger enjoys absolute immunity from plaintiff’s suit. 4 “[P]robation officers preparing reports for the use of state courts possess an absolute judicial 5 immunity from damage suits under section 1983 arising from acts performed within the scope of 6 their official duties.” Demoran v. Witt, 781 F.2d 155, 157 (9th Cir. 1986) (“Probation officers 7 preparing presentencing reports serve a function integral to the independent judicial process. . . . 8 [T]hey act as ‘an arm of the sentencing judge.’”); see also Schucker v. Rockwood, 846 F.2d 1202, 9 1204 (9th Cir. 1988) (per curiam) (“Judges are also absolutely immune from damage actions for 10 11 judicial acts taken within the jurisdiction of their courts.”). Third, any claim that a defendant violated plaintiff’s federal constitutional rights in a way 12 that has caused plaintiff to serve a longer sentence is not cognizable in this action. As a general 13 rule, a challenge in federal court to the fact of conviction or the length of confinement must be 14 raised in a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Preiser v. 15 Rodriguez, 411 U.S. 475 (1973). Where success in a section 1983 action would implicitly 16 question the validity of confinement or its duration, the plaintiff must first show that the 17 underlying conviction was reversed on direct appeal, expunged by executive order, declared 18 invalid by a state tribunal, or questioned by the grant of a writ of habeas corpus. Heck v. 19 Humphrey, 512 U.S. 477, 486-87 (1994); Muhammad v. Close, 540 U.S. 749, 751 (2004). By the 20 terms of Heck, plaintiff is barred from collaterally challenging an underlying criminal conviction 21 or sentence in this civil rights action. 22 Moreover, the bare allegation that defendant King “messes” with plaintiff’s mail is not 23 sufficient to state a cognizable claim for relief. Prisoners have a First Amendment right to send 24 and receive mail. See Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). 25 Nevertheless, prisons may adopt policies that impinge on that right as long as the policies are 26 “reasonably related to legitimate penological purposes.” Turner v. Safley, 482 U.S. 78, 89 (1987). 27 Courts consider four factors in determining the reasonableness of a prison regulation: (1) whether 28 there is a valid, rational connection between the prison regulation and the legitimate 4 1 governmental interest put forward to justify it; (2) whether there are alternative means of 2 exercising the right that remain open to prison inmates; (3) the impact accommodation of the 3 asserted constitutional right will have on guards and other inmates and on the allocation of prison 4 resources generally; and (4) the absence of ready alternatives, or, in other words, whether the rule 5 at issue is an exaggerated response to prison concerns. Id. at 89-90. An isolated incident of mail 6 interference or tampering is usually insufficient to establish a constitutional violation. Davis v. 7 Goord, 320 F.3d 346, 351 (2d. Cir. 2003); see also Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 8 1999) (temporary delay or isolated incident of delay of mail does not violate a prisoner’s First 9 Amendment rights); Witherow, 52 F.3d at 266 (9th Cir 1995) (First Amendment not violated 10 11 where prison’s mail regulation related to a legitimate penological interest). The bare allegation of “retaliation” against defendant Patterson is also not enough to state 12 a cognizable claim for relief. To state a viable First Amendment retaliation claim, a prisoner 13 must allege five elements: “(1) An assertion that a state actor took some adverse action against an 14 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the 15 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a 16 legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). If 17 plaintiff intents to assert a retaliation claim, he must allege facts showing that defendants were 18 aware of his prior engagement in protected conduct and that his protected conduct was “the 19 ‘substantial’ or ‘motivating’ factor” behind their alleged misconduct. Brodheim v. Cry, 584 F.3d 20 1262, 1271 (9th Cir. 2009). Generally speaking, a retaliation claim cannot rest on the logical 21 fallacy of post hoc, ergo propter hoc, literally, “after this, therefore because of this.” See Huskey 22 v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000). 23 For these reasons, plaintiff’s complaint must be dismissed. Plaintiff will be granted leave 24 to file an amended complaint, if he can allege a cognizable legal theory against a proper 25 defendant and sufficient facts in support of that cognizable legal theory. Lopez v. Smith, 203 F.3d 26 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity 27 to amend to correct any deficiency in their complaints). Should plaintiff choose to file an 28 amended complaint, the amended complaint shall clearly set forth the claims and allegations 5 1 against each defendant. Any amended complaint must cure the deficiencies identified above and 2 also adhere to the following requirements: 3 Any amended complaint must identify as a defendant only persons who personally 4 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 5 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 6 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 7 legally required to do that causes the alleged deprivation). 8 It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 9 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George 10 v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 11 Any amended complaint must be written or typed so that it so that it is complete in itself 12 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 13 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 14 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 15 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 16 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 17 1967)). 18 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 19 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 20 See E.D. Cal. L.R. 110. 21 IV. 22 Motion for Appointment of Counsel Plaintiff requests appointment of counsel. District courts lack authority to require counsel 23 to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 24 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to 25 voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 26 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 27 When determining whether “exceptional circumstances” exist, the court must consider the 28 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 6 1 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 2 (9th Cir. 2009). Having considered those factors, the court finds there are no exceptional 3 circumstances in this case. 4 5 V. Summary of Order Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted. 7 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 8 in accordance with the notice to the Colusa County Sheriff filed concurrently 9 herewith. 10 11 12 3. Plaintiff’s request for the appointment of counsel (ECF No. 15) is denied without prejudice. 4. The complaint is dismissed with leave to amend within 30 days. The complaint 13 must bear the docket number assigned to this case and be titled “Amended 14 Complaint.” Failure to comply with this order may result in dismissal of this 15 action for failure to prosecute and failure to state a claim. If plaintiff files an 16 amended complaint stating a cognizable claim the court will proceed with service 17 of process by the United States Marshal. 18 Dated: October 5, 2017. 19 20 21 22 23 24 25 26 27 28 7

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