Belyew v. Reilly

Filing 12

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/7/2017 GRANTING plaintiff's 5 , 8 , 9 request to proceed IFP and DISMISSING this action pursuant to 28 U.S.C. § 1915A. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent order to the Sheriff of Butte County. CASE CLOSED.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LISA BELYEW,

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No. 2:17-cv-1083-EFB P
Plaintiff,

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v.

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JAMES REILLY,

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ORDER GRANTING IFP AND DISMISSING
ACTION PURSUANT TO 28 U.S.C. § 1915A
Defendant.

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Plaintiff is a pretrial detainee proceeding without counsel in an action brought under 42

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U.S.C. § 1983.1 She seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
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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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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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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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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)

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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.

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Screening Order
The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and finds it

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must be dismissed without leave to amend. Plaintiff claims that the state trial judge presiding

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over her criminal proceedings is biased. He has allegedly “made an incompetent claim and is

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making an order for treatment (forced) against [plaintiff’s] will and [her] rights (5th
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Amendment).” ECF No. 1 at 5. Plaintiff claims the defendant state judge has also caused

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violations of her right to due process, including the rights a jury trial and to a speedy trial. As

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relief, plaintiff seeks damages and an order preventing the state court from requiring that she be

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forcibly medicated. This court cannot provide plaintiff with the relief she seeks and this action

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will therefore be dismissed.

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First, plaintiff may not pursue a claim against the defendant state judge based upon the

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judge’s rulings and other acts taken in his judicial capacity. See Wolfe v. Strankman, 392 F.3d

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358, 366 (9th Cir. 2004) (section 1983 “contemplates judicial immunity from suit for injunctive

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relief for acts taken in a judicial capacity”); Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir.

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1988) (per curiam) (judges are also absolutely immune from damage actions for judicial acts

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taken within the jurisdiction of their courts).

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Second, this court may not interfere with plaintiff’s criminal proceedings or otherwise

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provide plaintiff with the relief she seeks. As a matter of comity, federal courts may not enjoin

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pending state criminal proceedings where there is an adequate opportunity to raise the federal

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question at issue, except under extraordinary circumstances. Younger v. Harris, 401 U.S. 37, 49,

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53 (1971); H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000). Although plaintiff

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claims the trial judge is biased, she has not shown that the state court fails to afford her “an

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opportunity to raise [her] constitutional claims” or that exceptional circumstances warrant this

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court’s interference with the pending state prosecution. Id. at 49.

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For these reasons, plaintiff’s complaint must be dismissed without leave to amend. See

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Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009); Silva v. Di Vittorio, 658 F.3d 1090, 1105

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(9th Cir. 2011) (“Dismissal of a pro se complaint without leave to amend is proper only if it is

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absolutely clear that the deficiencies of the complaint could not be cured by amendment.”

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(internal quotation marks omitted)); Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A]

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district court should grant leave to amend even if no request to amend the pleading was made,

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unless it determines that the pleading could not be cured by the allegation of other facts.”).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF Nos. 5, 8, 9) 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 Butte County Sheriff filed concurrently

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herewith.

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3. This action is dismissed pursuant to 28 U.S.C. § 1915A.
DATED: September 7, 2017.

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