Dally v. El Dorado County Law Enforcement et al

Filing 9

ORDER signed by Magistrate Judge Dennis M. Cota on 11/19/2018 DISMISSING plaintiff's complaint with leave to amend; and plaintiff shall file an amended complaint within 30 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HARRY H. DALLY,

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Plaintiff,

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No. 2:17-CV-2356-DMC-P

v.

ORDER

EL DORADO COUNTY LAW
ENFORCEMENT, et al.,
Defendants.

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

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42 U.S.C. § 1983. Pending before the court is Plaintiff’s complaint (Doc. 1). Plaintiff alleges

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Defendants engaged in a conspiracy with the freemasons, illuminati, and his stepfather Ray Bias,

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among others, to falsely imprison him. Plaintiff also asserts that his attorney, James Warden,

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failed to properly investigate his case and that the warden of the prison is withholding his mail.

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For the reasons set forth below, Plaintiff’s complaint is dismissed.

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I. SCREENING REQUIREMENT AND STANDARD

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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).
The Federal Rules of Civil Procedure require complaints contain a “…short and

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plain statement of the claim showing that the pleader is entitled to relief.” See McHenry v.

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Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (quoting Fed. R. Civ. P. 8(a)(1)). Detailed factual

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allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s

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allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v.

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Wal–Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted).

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Prisoners proceeding pro se in civil rights actions are entitled to have their

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pleadings liberally construed and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d

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338, 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be

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facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer

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that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation

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marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The

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sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with

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liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks

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omitted); Moss, 572F.3d at 969.

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II. PLAINTIFF’S ALLEGATIONS

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Plaintiff alleges a conspiracy involving the freemasons, illuminati, El Dorado

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County law enforcement, South Lake Tahoe Police Department, the District Attorney’s Office,

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Public Defender James Warden, Judge Susan Kingsbury, the jail staff, Plaintiff’s stepfather Ray

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Bias, and “many others” related to his alleged false imprisonment. Plaintiff alleges, without

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specificity, that the defendants lied under oath, engaged in false discovery, forged transcripts,

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painted Plaintiff as something he is not, used false psychological evaluations saying Plaintiff is

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mental and suicidal, kept these acts secret, prevented Plaintiff from taking a lie detector test,

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prevented the FBI from investigating his case, and violated his constitutional rights.

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Plaintiff alleges that his public defender, James Warden, did not properly

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investigate his case, did not interview witnesses, engage in discovery, or subpoena witnesses. He

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further alleges that James Warden improperly informed Judge Kingsbury and D.A. Keller that

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Plaintiff is not mentally fit to stand trial. This, Plaintiff contends, is demonstrative of the

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conspiracy against him.

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Plaintiff also alleges that his prison mail is being held by the warden of the prison,
and is not being delivered.

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Additionally, Plaintiff contends that the South Lake Tahoe Police department and

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the District Attorney’s Office are conspiring with the “Freemasons illuminati tongue talking

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hypnotists” who want to end Plaintiff’s life in his jail cell. The root of this conspiracy, Plaintiff

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explains, is his stepfather, Ray Bias, who is angry with Plaintiff for saving his mother’s life.

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Plaintiff alleges that his stepfather created this conspiracy, involving the above listed parties as

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well as Vonne Benson and her husband, Mr. Benson, who died “doing hypnosis, mind control,

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telepathy” on Plaintiff. Plaintiff alleges many other components of this conspiracy involving

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various other individuals and organizations.

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Plaintiff seeks relief in the form of referral of this case to the Federal Bureau of

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Investigation and other “proper authorities.” It is unclear if Plaintiff seeks injunctive relief or

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damages for any of the alleged conduct.

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III. ANALYSIS
A.

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Ineffective Assistance of Counsel Claim
Plaintiff argues that his Public Defender James Warden, as a part of the alleged

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conspiracy, provided ineffective assistance of counsel. This claim fails. First, James Warden is

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not a named defendant in this action and even if James Warden was a named defendant, he is not

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a state actor under section 1983.

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A § 1983 violation must be committed by a person acting under color of state law.

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When public defenders are acting in their role as advocate, they are not acting under color of state

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law for § 1983 purposes. See Georgia v. McCollum, 505 U.S. 42, 53 (1992); Jackson v.

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Brown, 513 F.3d 1057, 1079 (9th Cir.2008). Even if employed by a public entity and paid with

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public funds, a public defender performing traditional lawyer's role is not a state actor. This

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precludes any ineffective assistance of counsel claim. Miranda v. Clark Cnty., Nev., 319 F.3d

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465, 468 (9th Cir.2003) (en banc); see also Kirtley v. Rainey, 326 F.3d 1088, 1093–94 (9th

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Cir.2003) (a state-appointed guardian ad litem does not act under color of state law for purposes

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of § 1983).

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Plaintiff's ineffective assistance of counsel claims relate to activities like

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investigating and subpoenaing witnesses. Such claims arise from Mr. Warden’s role as advocate

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and are not actionable under § 1983. Plaintiff may not proceed under § 1983 on claimed

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violations that did not arise under color of state law. For that reason, this claim is fails and cannot

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be cured through amendment.

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B.

Legal Mail
Plaintiff alleges his mail is not leaving the jail and is instead being held by the

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warden. Prisoners have a First Amendment right to send and receive mail. See Witherow v. Paff,

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52 F.3d 264, 265 (9th Cir. 1995) (per curiam). Prison officials may intercept and censor outgoing

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mail concerning escape plans, proposed criminal activity, or encoded messages. See Procunier v.

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Martinez, 416 U.S. 396, 413 (1974); see also Witherow, 52 F.3d at 266. Based on security

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concerns, officials may also prohibit correspondence between inmates. See Turner v. Safley, 482
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U.S. 78, 93 (1987). Prison officials may not, however, review outgoing legal mail for legal

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sufficiency before sending them to the court. See Ex Parte Hull, 312 U.S. 546, 549 (1941).

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Incoming mail from the courts, as opposed to mail from the prisoner’s attorney, for example, is

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not considered “legal mail.” See Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), amended

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by 135 F.3d 1318 (9th Cir. 1998).

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Specific restrictions on prisoner legal mail have been approved by the Supreme

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Court and Ninth Circuit. For example, prison officials may require that mail from attorneys be

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identified as such and open such mail in the presence of the prisoner for visual inspection. See

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Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974); Sherman v. MacDougall, 656 F.2d 527, 528

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(9th Cir. 1981). Whether legal mail may be opened outside the inmate’s presence, however, is an

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open question in the Ninth Circuit. At least three other circuits have concluded that legal mail

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may not be opened outside the inmate’s presence. See id. (citing Taylor v. Sterrett, 532 F.2d 462

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(5th Cir. 1976), Back v. Illinois, 504 F.2d 1100 (7th Cir. 1974) (per curiam), and Smith v.

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Robbins, 452 F.2d 696 (1st Cir. 1972)); see also Samonte v. Maglinti, 2007 WL 1963697 (D.

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Hawai’i July 3, 2007) (recognizing open question). At least one court in this circuit, however,

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has concluded, based on citation to a Sixth Circuit case, that a “prison’s ‘pattern and practice’ of

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opening confidential legal mail outside of [the] inmate’s presence infringes upon [the] inmate’s

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First Amendment rights and access to the courts.” Oliver v. Pierce County Jail, 2007 WL

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1412843 (W.D. Wash, May 9, 2007) (citing Muhammad v. Pritcher, 35 F.3d 1081 (6th Cir.

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1994)). The Ninth Circuit has, however, held that an isolated instance or occasional opening of

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legal mail outside the inmate’s presence does not rise to the level of a constitutional violation.

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See Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989).

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Plaintiff alleges, in a single sentence, that his legal mail is not leaving the jail, but

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rather is being held by the warden. The Warden is not a named defendant in this case, nor is

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anyone at the jail. Further, Plaintiff does not allege sufficient facts to support his allegation that

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his legal mail is being held by the warden of the prison instead of being sent. Additionally,

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Plaintiff fails to state what relief he is seeking. Because Plaintiff has not named the Warden as a

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defendant, has failed to provide sufficient facts to support his allegation, and fails to identify any
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form of legal relief, his withholding of legal mail claim fails. However, this defective charge may

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be cured through amendment.

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C.

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Conspiracy Claims
Plaintiff alleges a vast and sweeping conspiracy involving many individuals not

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named in the complaint. A claim is legally frivolous when it lacks an arguable basis either in law

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or in fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d

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1221, 1227-28 (9th Cir. 1984). When applied to a complaint, the term “frivolous” embraces both

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the inarguable legal conclusion and the fanciful factual allegation. See Neitzke, 490 U.S. at 325.

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The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably

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meritless legal theory or where the factual contentions are clearly baseless. Id. at 327. The

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critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable

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legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745

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F.2d at 1227. The court need not accept the allegations in the complaint as true, but must

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determine whether they are fanciful, fantastic, or delusional. See Denson v Hernandez, 504 U.S.

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25, 33 (1992) (quoting Neitzke, 490 U.S. at 328). Finally, a complaint may be dismissed as

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frivolous if it merely repeats pending or previously litigated claims. See Cato v. United States, 70

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F.3d 1103, 1105 n.2 (9th Cir. 1995).

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Based on the facts alleged in the complaint it is clear that none of the allegations

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related to the conspiracy state a cognizable § 1983 claim. Further, the allegations related to the

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alleged conspiracy can only be categorized as fanciful. The Supreme Court has held that a

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complaint is frivolous if it “embraces not only the inarguable legal conclusion, but also the

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fanciful factual allegation.” Neitzke, 490 U.S. at 325. A court may dismiss a claim as frivolous

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where the factual contentions contained therein are clearly baseless, id. at 327, and the court finds

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it appropriate to do so in the instant case. Because the allegations in Plaintiff’s complaint related

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to the conspiracy embrace both meritless legal theories and fanciful factual assertions, they fail

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and cannot be cured via amendment.

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IV. LEAVE TO AMEND
Because it is possible that the deficiencies, related to Plaintiff’s withholding of

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legal mail claim, may be cured by amending the complaint, plaintiff is entitled to leave to amend

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prior to dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir.

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2000) (en banc). Plaintiff is informed that, as a general rule, an amended complaint supersedes

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the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus,

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following dismissal with leave to amend, all claims alleged in the original complaint which are

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not alleged in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th

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Cir. 1987). Therefore, if plaintiff amends the complaint, the court cannot refer to the prior

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pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An

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amended complaint must be complete in itself without reference to any prior pleading. See id.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Because some of the defects identified in this order cannot be cured by

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amendment, plaintiff is not entitled to leave to amend as to such claims. Plaintiff, therefore, now

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has the following choices: (1) plaintiff may file an amended complaint which does not allege the

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claims identified herein as incurable, in which case such claims will be deemed abandoned and

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the court will address the remaining claims; or (2) plaintiff may file an amended complaint which

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continues to allege claims identified as incurable, in which case the court will issue findings and

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recommendations that such claims be dismissed from this action, as well as such other orders

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and/or findings and recommendations as may be necessary to address the remaining claims.

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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V. CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s complaint is dismissed with leave to amend; and

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Plaintiff shall file an amended complaint within 30 days of the date of

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service of this order.

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Dated: November 19, 2018
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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