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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALEX LEONARD AZEVEDO,

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Plaintiff,

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No. 2:16-cv-2809-EFB P

v.
ALBERT SMITH, et al.,

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ORDER GRANTING IFP AND DISMISSING
COMPLAINT WITH LEAVE TO AMEND
PURSUANT TO 28 U.S.C. § 1915A

Defendants.

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

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U.S.C. § 1983, seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 1 He also

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seeks appointment of counsel.

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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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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).
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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)
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.

Screening Order
The court has reviewed plaintiff’s complaint for purposes of 28 U.S.C. § 1915A. Plaintiff

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alleges that defendant Smith, his court appointed attorney, has poorly represented him in his

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criminal cases by embarrassing him in court and by failing to file appeals or to provide plaintiff

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with requested paperwork. Plaintiff claims Smith’s failings have ultimately caused him to serve

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more time in custody. ECF No. 1 at 3, 9-10.2 Plaintiff further alleges that defendant King, of the

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Colusa County Sheriff’s Department, has altered documents in order to manipulate the system

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and cause plaintiff to serve more time in custody. He also claims that she “messes” with his mail.

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Id. at 4, 14. Plaintiff claims that defendant Rainsbarger, his probation officer, has lied in

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probation reports and placed warrants out for plaintiff’s arrest after plaintiff had already been

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arrested in an effort to cause plaintiff “to serve a longer sentence.” Id. at 5, 11. Plaintiff also

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claims that defendant Patterson, a police officer, arrested him and lied about the circumstances of

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the arrest “out of retaliation.” Id. at 12-13. Plaintiff seeks damages for “[defamation], poor

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representation and illegal imprisonment, and harassment.” Id. at 6. As discussed below, the

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complaint names improper defendants, fails to state a proper claim for relief under the applicable

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standards, and will be dismissed with leave to amend.

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First, plaintiff’s court appointed attorney, defendant Smith, cannot be sued under § 1983.

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To state a claim under 42 U.S.C. § 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

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

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487 U.S. 42, 48 (1988). “[A] public defender does not act under color of state law when

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performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.”

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See Polk County v. Dodson, 454 U.S. 312, 325 (1981). Because plaintiff’s claims against

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defendant Smith are based on Smith’s allegedly poor representation of plaintiff in a criminal case,

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Smith was not acting under color of state law, and plaintiff cannot bring a claim for damages

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against Smith pursuant to § 1983. Furthermore, any potential claims for state law defamation or

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

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662 F.2d 1337, 1344 (9th Cir. 1981).

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Second, defendant Rainsbarger enjoys absolute immunity from plaintiff’s suit.

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“[P]robation officers preparing reports for the use of state courts possess an absolute judicial

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immunity from damage suits under section 1983 arising from acts performed within the scope of

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their official duties.” Demoran v. Witt, 781 F.2d 155, 157 (9th Cir. 1986) (“Probation officers

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preparing presentencing reports serve a function integral to the independent judicial process. . . .

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[T]hey act as ‘an arm of the sentencing judge.’”); see also Schucker v. Rockwood, 846 F.2d 1202,

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1204 (9th Cir. 1988) (per curiam) (“Judges are also absolutely immune from damage actions for

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judicial acts taken within the jurisdiction of their courts.”).
Third, any claim that a defendant violated plaintiff’s federal constitutional rights in a way

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that has caused plaintiff to serve a longer sentence is not cognizable in this action. As a general

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rule, a challenge in federal court to the fact of conviction or the length of confinement must be

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raised in a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Preiser v.

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Rodriguez, 411 U.S. 475 (1973). Where success in a section 1983 action would implicitly

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question the validity of confinement or its duration, the plaintiff must first show that the

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underlying conviction was reversed on direct appeal, expunged by executive order, declared

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invalid by a state tribunal, or questioned by the grant of a writ of habeas corpus. Heck v.

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Humphrey, 512 U.S. 477, 486-87 (1994); Muhammad v. Close, 540 U.S. 749, 751 (2004). By the

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terms of Heck, plaintiff is barred from collaterally challenging an underlying criminal conviction

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or sentence in this civil rights action.

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Moreover, the bare allegation that defendant King “messes” with plaintiff’s mail is not

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sufficient to state a cognizable claim for relief. Prisoners have a First Amendment right to send

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and receive mail. See Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam).

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Nevertheless, prisons may adopt policies that impinge on that right as long as the policies are

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“reasonably related to legitimate penological purposes.” Turner v. Safley, 482 U.S. 78, 89 (1987).

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Courts consider four factors in determining the reasonableness of a prison regulation: (1) whether

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there is a valid, rational connection between the prison regulation and the legitimate
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governmental interest put forward to justify it; (2) whether there are alternative means of

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exercising the right that remain open to prison inmates; (3) the impact accommodation of the

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asserted constitutional right will have on guards and other inmates and on the allocation of prison

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resources generally; and (4) the absence of ready alternatives, or, in other words, whether the rule

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at issue is an exaggerated response to prison concerns. Id. at 89-90. An isolated incident of mail

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interference or tampering is usually insufficient to establish a constitutional violation. Davis v.

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Goord, 320 F.3d 346, 351 (2d. Cir. 2003); see also Crofton v. Roe, 170 F.3d 957, 961 (9th Cir.

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1999) (temporary delay or isolated incident of delay of mail does not violate a prisoner’s First

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Amendment rights); Witherow, 52 F.3d at 266 (9th Cir 1995) (First Amendment not violated

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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

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a cognizable claim for relief. To state a viable First Amendment retaliation claim, a prisoner

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must allege five elements: “(1) An assertion that a state actor took some adverse action against an

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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the

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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). If

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plaintiff intents to assert a retaliation claim, he must allege facts showing that defendants were

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aware of his prior engagement in protected conduct and that his protected conduct was “the

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‘substantial’ or ‘motivating’ factor” behind their alleged misconduct. Brodheim v. Cry, 584 F.3d

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1262, 1271 (9th Cir. 2009). Generally speaking, a retaliation claim cannot rest on the logical

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fallacy of post hoc, ergo propter hoc, literally, “after this, therefore because of this.” See Huskey

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v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000).

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For these reasons, plaintiff’s complaint must be dismissed. Plaintiff will be granted leave

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to file an amended complaint, if he can allege a cognizable legal theory against a proper

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defendant and sufficient facts in support of that cognizable legal theory. Lopez v. Smith, 203 F.3d

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1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity

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to amend to correct any deficiency in their complaints). Should plaintiff choose to file an

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amended complaint, the amended complaint shall clearly set forth the claims and allegations
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against each defendant. Any amended complaint must cure the deficiencies identified above and

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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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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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See E.D. Cal. L.R. 110.

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IV.

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Motion for Appointment of Counsel
Plaintiff requests appointment of counsel. District courts lack authority to require counsel

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to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to

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voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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When determining whether “exceptional circumstances” exist, the court must consider the

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro
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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009). Having considered those factors, the court finds there are no exceptional

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circumstances in this case.

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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 Colusa County Sheriff filed concurrently

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herewith.

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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

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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 may result in dismissal of this

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action for failure to prosecute and failure to state a claim. If plaintiff files an

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amended complaint stating a cognizable claim the court will proceed with service

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of process by the United States Marshal.

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Dated: October 5, 2017.

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