Wallace v. Morris

Filing 13

ORDER to SHOW CAUSE signed by Magistrate Judge Craig M. Kellison on 1/12/18 ORDERING plaintiff shall show cause in writing within 30 days of the date of this order, why this action should not be dismissed for failure to state a claim. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE WALLACE,

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Plaintiff,

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vs.

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No. 2:17-cv-0428-CMK-P

JESSIE MORRIS,

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ORDER

Defendant.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. Pending before the court is plaintiff’s amended complaint (Doc. 10). Plaintiff

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has consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party

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has been served or appeared in the action.

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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 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. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain
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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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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). Because plaintiff must

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allege with at least some degree of particularity overt acts by specific defendants which support

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the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is

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impossible for the court to conduct the screening required by law when the allegations are vague

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and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff alleges his public defender, Jessie Morris, conspired with the state

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prosecutor to secure his conviction. He contends that his attorney intentionally kept information

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and evidence from the jury, attempted to prejudice the jury against him, refused to investigate

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potential witnesses, and was generally incompetent especially in regards to his examination of

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witnesses.

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II. DISCUSSION

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In general, § 1983 imposes liability upon any person who, acting under color of

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state law, deprives another of a federally protected right. 42 U.S.C. § 1983 (1982). “To make

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out a cause of action under section 1983, plaintiffs must plead that (1) the defendants acting

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under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal

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statutes.” Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.1986). Public defenders act as

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an advocate for their client and are not acting under color of state law for § 1983 purposes, nor

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are attorneys appointed by the court to represent a defendant in place of the public defender. See

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Georgia v. McCollum, 505 U.S. 42, 53 (1992); Polk County v. Dodson, 454 U.S. 312, 320-25

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(1981). Thus, plaintiff cannot state a claim against defendant Morris based on his representation

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of plaintiff at his criminal trial.
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It is possible that plaintiff may be attempting to state a claim for something akin to

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malicious prosecution, based on his allegations that his public defender conspired with the

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prosecution. However, such a claim is not cognizable under § 1983 unless the underlying

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conviction or sentence has first been invalidated on appeal, by habeas petition, or through some

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similar proceeding. See Heck v. Humphrey, 512 U.S. 477, 483-84 (1994) (concluding that §

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1983 claim not cognizable because allegations were akin to malicious prosecution action which

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includes as an element a finding that the criminal proceeding was concluded in plaintiff’s favor).

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More generally, when a state prisoner challenges the legality of his custody and the relief he

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seeks is a determination that he is entitled to an earlier or immediate release, such a challenge is

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not cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal remedy is a petition for a

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writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v.

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Shimoda, 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586

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(9th Cir. 1995) (per curiam). Thus, where a § 1983 action seeking monetary damages or

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declaratory relief alleges constitutional violations which would necessarily imply the invalidity of

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the prisoner’s underlying conviction or sentence, or the result of a prison disciplinary hearing

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resulting in imposition of a sanction affecting the overall length of confinement, such a claim is

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not cognizable under § 1983 unless the conviction or sentence has first been invalidated on

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appeal, by habeas petition, or through some similar proceeding. See Heck, 512 U.S. at 483-84.

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Plaintiff refers to another case wherein he filed a petition for writ of habeas corpus

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in this court, case number 2:14-cv-0157-MCE-EFB.1 A review of the court’s docket shows that

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plaintiff’s petition was denied. Thus, plaintiff fails to show that his underlying conviction has

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been overturned and this claim is not cognizable.

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The court may take judicial notice of its own records. See Chandler v. U.S., 378
F.2d 906, 909 (9th Cir. 1967).
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III. CONCLUSION

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Because it does not appear possible that the deficiencies identified herein can be

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cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of

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

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Plaintiff shall show cause in writing, within 30 days of the date of this order, why this action

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should not be dismissed for failure to state a claim. Plaintiff is warned that failure to respond to

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this order may result in dismissal of the action for the reasons outlined above, as well as for

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failure to prosecute and comply with court rules and orders. See Local Rule 110.

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IT IS SO ORDERED.

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DATED: January 12, 2018
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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