Cook v. Mock

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 07/26/17 granting 2 Motion to Proceed IFP. Plaintiff shall pay the statutory filing fee of $350.00 for this action. All fees shall be paid in accordance with the court's CDC order f iled concurrently herewith. Plaintiff's request for instructions on paying a portion of the filing fee 6 is denied as moot. Plaintiff's request for the appointment of counsel 5 is denied. The complaint is dismissed without leave to amend and without prejudice to plaintiff's proper pursuit of habeas corpus relief in a new action. (Plummer, M) Modified on 7/26/2017 (Plummer, M).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MAURICE COOK, Jr.,

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Plaintiff,

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No. 2:17-cv-0969-EFB P

v.

ORDER

STEPHEN L. MOCK,

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Defendant.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983.1 He has filed an application for leave to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915, a request for instructions on paying a portion of the filing fee, and a request for the

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appointment of counsel.

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I.

Request for Leave to Proceed In Forma Pauperis and Request for Instructions
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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Plaintiff’s request for instructions on paying a portion of the filing fee is denied as moot.

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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 Order

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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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Here, plaintiff is suing the state court judge who presided over his criminal trial. Plaintiff

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alleges that the judge illegally sentenced him and then denied his motion to correct the illegal

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sentence. As relief, plaintiff requests removal of the “illegal 25 years to life sentence” and a

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“new abstract of judgment.” ECF No. 1 at 15.

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As an initial matter, the court notes that the defendant judge is immune from plaintiff’s §

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1983 suit for injunctive relief. See Wolfe v. Strankman, 392 F.3d 358, 366 (9th Cir. 2004). By its

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very terms, § 1983 prohibits a grant of injunctive relief against any “judicial officer” acting in his

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or her judicial capacity “unless a declaratory decree was violated or declaratory relief was

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unavailable.” 42 U.S.C. § 1983. Plaintiff’s complaint does not concern the violation of a

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declaratory decree or the unavailability of declaratory relief.

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Even if plaintiff had named a proper defendant, dismissal without prejudice to the filing of

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a new action pursuant to 28 U.S.C. § 2254 would be required. As a general rule, a challenge in

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federal court to the fact of conviction or the length of confinement must be raised in a petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475

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(1973). Where success in a section 1983 action would implicitly question the validity of

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confinement or its duration, the plaintiff must first show that the underlying conviction was

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reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or

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questioned by the grant of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87

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(1994); Muhammad v. Close, 540 U.S. 749, 751 (2004).

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If plaintiff were to succeed in this action attacking his “illegal sentence,” it would
necessarily undermine the validity of his sentence. Accordingly, a writ of habeas corpus is
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plaintiff’s sole remedy in federal court, which he may pursue only after exhausting all of his

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constitutional claims in state court. Therefore, plaintiff’s complaint must be dismissed without

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leave to amend. See Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009); Silva v. Di Vittorio,

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658 F.3d 1090, 1105 (9th Cir. 2011) (“Dismissal of a pro se complaint without leave to amend is

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proper only if it is absolutely clear that the deficiencies of the complaint could not be cured by

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amendment.” (internal quotation marks omitted)); Doe v. United States, 58 F.3d 494, 497 (9th

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Cir. 1995) (“[A] district court should grant leave to amend even if no request to amend the

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pleading was made, unless it determines that the pleading could not be cured by the allegation of

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other facts.”).

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III.

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Request for the Appointment of Counsel
As to plaintiff’s request for appointment of counsel, district courts lack authority to

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require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an

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attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th

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Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate

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his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there are no

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exceptional circumstances in this case and the motion is denied.

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IV.

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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 in

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accordance with the notice to the California Department of Corrections and Rehabilitation

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filed concurrently herewith.

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3. Plaintiff’s request for instructions on paying a portion of the filing fee (ECF No. 6) is
denied as moot.
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4. Plaintiff’s request for the appointment of counsel (ECF No. 5) is denied.

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5. The complaint is dismissed without leave to amend and without prejudice to plaintiff’s

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proper pursuit of habeas corpus relief in a new action.
Dated: July 26, 2017.

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