Wallace v. Slivka

Filing 4

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 3/28/2017 GRANTING plaintiff's 2 request to proceed IFP; and the Clerk shall assign a district judge to this case. IT IS RECOMMENDED that this action be dismissed without prejudice. Assigned and referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Yin, K)

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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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No. 2:17-cv-0620 KJN P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

DONELL SLIVKA,

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Defendant.

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Introduction

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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. This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). As

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set forth below, the court finds that plaintiff’s complaint should be dismissed without leave to

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amend.

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Plaintiff 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 to make monthly

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payments of twenty percent of the preceding month’s income credited to plaintiff’s 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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Screening Standards

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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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 Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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

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formulaic recitation of the elements of a cause of action;” it must contain factual allegations

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sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific
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facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what

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the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93

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(2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted).

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In reviewing a complaint under this standard, the court must accept as true the allegations of the

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complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most

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favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other

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grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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Plaintiff’s Complaint

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Plaintiff names Donell Slivka, Sacramento County Deputy District Attorney, as the sole

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defendant. Slivka prosecuted plaintiff in criminal case number 09F09095. Plaintiff alleges that

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defendant knowingly presented false evidence and testimony, and kept material and favorable

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evidence from the plaintiff and the jury, all constituting prosecutorial misconduct under the Fifth,

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Sixth and Fourteenth Amendments. Plaintiff contends he did not discover the evidence of this

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alleged misconduct until 2013-14. Plaintiff seeks money damages.

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Discussion

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When a prisoner challenges the legality or duration of his custody, or raises a

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constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a

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writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973). Moreover, when seeking

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damages for an allegedly unconstitutional conviction or imprisonment, “a § 1983 plaintiff must

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prove that the conviction or sentence has been reversed on direct appeal, expunged by executive

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order, declared invalid by a state tribunal authorized to make such determination, or called into

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question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck v.

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Humphrey, 512 U.S. 477, 487-88 (1994). If plaintiff prevailed on his claim that he was

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wrongfully convicted, a judgment in plaintiff’s favor would necessarily imply the invalidity of

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plaintiff’s criminal conviction.

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In addition, where, as here, a state prosecutor engaged in activities intimately associated

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with the judicial phase of the criminal process, he is entitled to absolute immunity. Broam v.

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Bogan, 320 F.3d 1023 (9th Cir. 2003); see also Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir.
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1986) (“Prosecutors are absolutely immune for quasi-judicial activities taken within the scope of

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their authority.”)

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The proper avenue for plaintiff to pursue relief is by filing a petition for writ of habeas

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corpus under 28 U.S.C. § 2254. See, e.g., Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir. 2003).

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Moreover, review of court records demonstrates that plaintiff filed a petition for writ of habeas

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corpus challenging his 2010 conviction in Wallace v. Barnes, No. 2:14-cv-0157 MCE EFB (E.D.

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Cal.), which is presently pending.

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Thus, plaintiff’s complaint must be dismissed without prejudice.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The request to proceed in forma pauperis is granted; and

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2. The Clerk of the Court is directed to assign a district judge to this case; and

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IT IS RECOMMENDED that this action be dismissed without prejudice.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: March 28, 2017

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/wall0620.56

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