(PC) Miles v. Hollister et al

Filing 20

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 9/14/2020 VACATING the 17 Findings and Recommendations entered on 5/18/2020. Within 30 days, plaintiff shall file a properly completed ifp application. Plaintiff' ;s complaint is DISMISSED with leave to file an amended complaint within 60 days. Plaintiff's request for a court-appointed investigator 5 is DENIED. Plaintiff's motion to add evidence 8 is DENIED. Plaintiff's motion to dismiss state charges 9 is DENIED. Plaintiff's motion to dismiss the Plumas County action 14 is DENIED. Plaintiff's motion to bring forth evidence 16 is DENIED. Plaintiff's motion to set aside the filing fee 19 is DENIED. T he Clerk shall send plaintiff an ifp application and a civil rights complaint form. IT IS RECOMMENDED that plaintiff's 7 Motion to Stay be denied; and plaintiff's 13 Motion to Postpone be denied. Referred to Judge John A. Mendez; Objections to F&R due within 30 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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GEORGIA MILES,

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No. 2:19-cv-2151 JAM DB P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

HOLLISTER, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff has presented several claims that relate to her criminal case and

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incarceration in the Plumas County Jail. Presently before the court are numerous motions filed by

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plaintiff as well as her complaint for screening.
IN FORMA PAUPERIS

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On May 18, 2020, the court issued findings and recommendations recommending that this

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action be dismissed for failure to comply with court orders because plaintiff had not filed an

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application to proceed in forma pauperis or paid the filing fee. (ECF No. 17.) Thereafter,

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plaintiff filed a notice regarding filing fees (ECF No. 18) and a motion to set aside the filing fee

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(ECF No. 19).

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It appears from her most recent filings that plaintiff is under the mistaken impression that

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she is required to pay the filing fee in full. However, pursuant to 28 U.S.C. § 1915(a)(1) the court

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may authorize litigants proceeding pro se to commence litigation of a suit provided the litigant
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files an application showing that they are unable to pay the filing fee. The court will deny

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plaintiff’s motion to cancel filing fees, vacate the findings and recommendations, and give

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plaintiff one final opportunity to file a properly completed application to proceed in forma

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pauperis.

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SCREENING

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I.

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

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governmental entity or an 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 the prisoner has raised claims

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

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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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 where 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 Franklin, 745 F.2d at 1227.
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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However, in order to survive dismissal for failure to state a claim a complaint must contain more

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

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

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U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution .
. . shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A

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person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of §

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1983, if he does an affirmative act, participates in another’s affirmative acts or omits to perform

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an act which he is legally required to do that causes the deprivation of which complaint is made.”

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

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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II.

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Allegations in the Complaint
Plaintiff has named as defendants in this action: (1) District Attorney Hollister; (2) Judge

Gindonelle; (3) Public Defender Bill Abramson; and (4) Judge Ira Kaufman. (ECF No. 1 at 2.)

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Plaintiff appears to challenge decisions made in state criminal proceedings in which she is

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the defendant. Specifically, she objects to being found incompetent pursuant to California Penal

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Code § 1368 and denial of her motion to represent herself. However, plaintiff also includes

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allegations regarding her conditions of confinement in the Plumas County Jail.

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III.

Does Plaintiff State a Claim under § 1983?

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A. Plaintiff Cannot Contest State Court Criminal Proceedings via § 1983

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Plaintiff has named as defendants in this action individuals who are involved in state

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criminal proceedings in which she is the defendant. However, she also devotes considerable time

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to the conditions of her confinement in the Plumas County Jail. To the extent plaintiff claims that

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the conditions complained of violate her rights, she may state a claim. However, the complaint

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must be dismissed because she has not identified any specific jail officials as defendants in this

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action or specified how those individuals violated her rights.

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“‘Federal law opens two main avenues to relief on complaints related to imprisonment: a

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petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871,

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Rev. Stat. § 1979, as amended 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750

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(2004) (per curium). A habeas corpus petition is the proper mechanism for a prisoner to use to

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contest the legality or duration of his confinement. See Preiser v. Rodriguez, 411 U.S. 475, 485

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(1973); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). In contrast, a civil rights action

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pursuant to § 1983 is the proper method for a prisoner to challenge the conditions of that

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confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499;

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Badea, 931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section

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2254 Cases.

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Additionally, before plaintiff may bring an action for damages based on an allegedly

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unconstitutional conviction or imprisonment, or for other harm caused by actions whose

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unlawfulness would render a conviction or sentence invalid, plaintiff must prove certain elements.

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Plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged

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

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called into question by a federal court’s issuance of a writ of habeas corpus. Heck v. Humphrey,

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512 U.S. 477, 486-87 (1994).

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Viewing plaintiff’s filings in this action as a whole, it is not clear whether she seeks to

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challenge the state court criminal case or the conditions of her confinement in the Plumas County

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Jail. To the extent she seeks to contest rulings made in state court criminal proceedings, she may
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not proceed with a civil rights action because an action for writ of habeas corpus is the exclusive

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method by which a prisoner may challenge in federal court her state court conviction. See Preiser

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v. Rodriguez, 411 U.S. 475, 500 (1973) (where a state prisoner challenges the fact or duration of

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his confinement, his sole remedy is a writ of habeas corpus); see also Wilkinson v. Dotson, 544

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U.S. 74, 79 (2005) (citing Preiser, 411 U.S. at 489) (Section 1983 actions do not lie when a state

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prisoner challenges the fact or duration of his confinement and seeks immediate release from

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prison.).

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B. The Identified Defendants are Immune from Suit

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Plaintiff has identified as defendants only individuals who are involved in the criminal

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case against her. (ECF No. 1 at 1-2.) However, as set forth below, each of the identified

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defendants are immune from suit.

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1. Judicial Immunity

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Plaintiff has named two judges as defendants in this action and plaintiff alleges they

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violated her rights based on rulings in her underlying criminal case. However, “[j]udges are

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absolutely immune from civil liability for damages for their judicial acts.” Mullis v. U.S. Bankr.

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Court for Dist. of Nevada, 828 F.2d 1385, 1388 (9th Cir. 1987) (citing Bradley v. Fisher, 80 U.S.

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(13 Wall.) 335, 347 (1872); Pierson v. Ray, 386 U.S. 547, 554-55 (1967) (applying judicial

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immunity to a § 1983 action). Accordingly, judges Gindonelle and Kaufman are not proper

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defendants in a § 1983 case.

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2. Public Defender

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Plaintiff has also named public defender Bill Abramson as a defendant in this action based

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his role as her attorney during criminal proceedings brought against her. Generally, criminal

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defense attorneys, including public defenders, are considered private parties who did not act

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under color of state law. Polk County v. Dodson, 454 U.S. 312, 317-325 (1981) (when

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representing an indigent defendant in a state criminal proceeding, the public defender does not act

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under color of state law for purposes of § 1983 because he is not acting on behalf of the state; he

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is the state’s adversary); Vermont v. Brillon, 556 U.S. 81, 91 (2009) (assigned public defender is

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ordinarily not considered a state actor). Accordingly, plaintiff cannot state a claim against public

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defender Bill Abramson based on the allegations set forth in the complaint.

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3. Prosecutor

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Plaintiff has named the district attorney prosecuting the criminal case against her as a

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defendant. “Prosecutors are absolutely immune from liability under § 1983 for their conduct

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insofar as it is ‘intimately associated’ with the judicial phase of the criminal process.” Botello v.

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Gammick, 413 F.3d 971, 975 (9th Cir. 2005) (quoting Imbler v. Pachtman, 424 U.S. 409, 430

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(1976)). Prosecutors have immunity from actions that are related to the initiation and

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presentation of criminal prosecutions. Imbler, 424 U.S. at 430-31; Botello, 413 F.3d at 976.

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Accordingly, to the extent plaintiff’s claim is based on Hollister’s actions in charging and

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prosecuting plaintiff, he is immune from suit.

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Because plaintiff has named only immune defendants, the court will dismiss the complaint
with leave to amend.
IV.

Amending the Complaint

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In any amended complaint, plaintiff must demonstrate how the conditions about which he

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complains resulted in a deprivation of his constitutional rights. Rizzo, 423 U.S. at 370-71. Also,

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the complaint must allege in specific terms how each named defendant is involved. Arnold v.

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Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can be no liability under 42

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U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s action

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and the claimed deprivation. Id.; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Furthermore, “[v]ague and conclusory allegations of official participation in civil rights violations

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are not sufficient.” Ivey, 673 F.2d at 268.

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Plaintiff is advised that in an amended complaint he must clearly identify each defendant

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and the action that defendant took that violated his constitutional rights. The court is not required

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to review exhibits to determine what plaintiff’s charging allegations are as to each named

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defendant. If plaintiff wishes to add a claim, he must include it in the body of the complaint. The

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charging allegations must be set forth in the amended complaint, so defendants have fair notice of

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the claims plaintiff is presenting. That said, plaintiff need not provide every detailed fact in
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support of his claims. Rather, plaintiff should provide a short, plain statement of each claim. See

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Fed. R. Civ. P. 8(a).

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Any amended complaint must show the federal court has jurisdiction, the action is brought

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in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must

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contain a request for particular relief. Plaintiff must identify as a defendant only persons who

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personally participated in a substantial way in depriving plaintiff of a federal constitutional right.

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Johnson, 588 F.2d at 743 (a person subjects another to the deprivation of a constitutional right if

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he does an act, participates in another’s act or omits to perform an act he is legally required to do

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that causes the alleged deprivation).

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In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed.

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R. Civ. P 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed.

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R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or

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occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).

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The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d

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1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any

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heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P.

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84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be

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set forth in short and plain terms, simply, concisely, and directly. See Swierkiewicz v. Sorema

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N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system,

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which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8.

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Plaintiff is informed that the court cannot refer to a prior pleading in order to make his

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amended complaint complete. An amended complaint must be complete in itself without

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reference to any prior pleading. E.D. Cal. R. 220. Once plaintiff files an amended complaint, all

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prior pleadings are superseded. Therefore, in an amended complaint, as in an original complaint,

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each claim and the involvement of each defendant must be sufficiently alleged.

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By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and

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has evidentiary support for his allegations, and for violation of this rule the court may impose

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sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11.
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OTHER MOTIONS

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In addition to her filings related to payment of the filing fee, plaintiff has filed the

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following motions:
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“Motion to Hire Expert Investigator” – Plaintiff references some crime that occurred in

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the past and argues the court should appoint an investigator who can help her prove her

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allegations regarding this past unrelated case. (ECF No. 5.)
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“Motion to Stay” – Plaintiff requests that this action be postponed because she is
incarcerated. She asks that nothing unreasonable be asked of her. (ECF No. 7.)

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“Motion to Add Evidence” – Plaintiff appears to complain about a number of state court

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rulings on the basis that the judge, district attorney, and public defender are biased.

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Plaintiff asks the undersigned to take over the state court criminal case. (ECF No. 8.)
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“Motion for Court Order to Dismiss Criminal Charges” – Plaintiff seeks an order

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dismissing the state court charges. She argues the charges should be dismissed because

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they have been brought based on a vindictive prosecution in violation of due process. She

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alleges the DA, Hollister, is targeting her because of her views on gender and PC § 290.

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Plaintiff appears to allege that she was improperly found mentally incompetent. She

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further alleges that “they” are “screwing up her chapter 7 bankruptcy.” Plaintiff appears

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to object to a state court finding that she is incompetent to stand trial. (ECF No. 9.)
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“Motion to Postpone” – Plaintiff appears to be seeking to postpone this action because she
is incarcerated. (ECF No. 13.)

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“Motion to Dismiss Criminal Action” – Plaintiff seeks an order from this court dismissing

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her criminal case in Plumas County. It appears that plaintiff’s argument in support of

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dismissal is that prosecution of her criminal case violates the equal protection clause.

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(ECF No. 14.)
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“Motion to Bring Forth Evidence” – Plaintiff again seems to contest the state court’s
finding that she was incompetent. (ECF No. 16.)

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Plaintiff’s motions can be generally broken down into two categories, those seeking a stay

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of this action (ECF Nos. 7, 13) and those seeking relief from state court orders (ECF Nos. 5, 8, 9,

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14, 16.) For the reasons set forth below, the court will deny all of plaintiff’s motions seeking

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relief from rulings in her criminal case and recommend that her requests for a stay of this action

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be denied.
Motions re Plaintiff’s State Court Criminal Case

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I.

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Several of plaintiff’s motions seek relief from rulings entered in the criminal case in

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which plaintiff is a defendant. (See ECF Nos. 5, 8, 9, 14, 16.)

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Under the Rooker-Feldman doctrine a federal district court is precluded from hearing

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“cases brought by state-court losers complaining of injuries caused by state-court judgments

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rendered before the district court proceedings commenced and inviting the district court review

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and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.

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280, 284 (2005). The Rooker-Feldman doctrine applies not only to final state court orders and

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judgments, but to interlocutory orders and non-final judgments issued by a state court as well.

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Doe & Assoc. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001); Worldwide

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Church of God v. McNair, 805 F.2d 888, 893 n.3 (9th Cir. 1986). Additionally, under Younger v.

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Harris, 401 U.S. 37 (1971), federal courts should abstain from hearing a civil rights claim arising

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from an ongoing criminal prosecution.

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Plaintiff seeks to have the Plumas County criminal charges against her dismissed (ECF

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No. 14) and contest that court’s findings regarding her competency. Because plaintiff seeks this

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court’s intervention in ongoing state court criminal proceedings the court must deny the motions.

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It is inappropriate for this court to rule on plaintiff’s motions because she seeks federal court

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intervention in ongoing state court criminal proceedings as any ruling granting relief would be in

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violation of Younger abstention and the Rooker-Feldman doctrine.

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II.

Motions Seeking a Stay of this Action

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The United States Supreme Court has clearly indicated that “the power to stay

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proceedings is incidental to the power inherent in every court to control the disposition of the

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causes on its docket with economy of time and effort for itself, for counsel, and for litigants.
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How this can best be done calls for the exercise of judgment, which must weigh competing

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interests and maintain an even balance.” Landis v. North American Co., 299 U.S. 248, 254-55

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(1936). In this regard, “the proponent of the stay bears the burden of establishing its need.”

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Clinton v. Jones, 520 U.S. 681, 706 (1997).

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In support of her requests to stay for this action plaintiff has indicated that she is in jail.

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However, incarceration is not a sufficient reason to stay this action. The only action required of

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plaintiff at the time she filed the motion was completing a properly completed in forma pauperis

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application. It is routine for inmates proceeding pro se to complete and return in forma pauperis

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applications. Additionally, plaintiff has not indicated any proposed end date for the requested

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stay.
Because plaintiff has not established any reason that would support the imposition of an

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indefinite stay, the court will recommend that plaintiff’s motion for stay and motion to postpone

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be denied. To the extent that plaintiff needs additional time to comply with any future orders due

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to her incarceration she may seek an extension of time. She is advised that in any motion for an

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extension of time shall state the amount of time requested and the reason additional time is

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necessary.

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CONCLUSION

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For the reasons set forth above, IT IS HEREBY ORDERED that:

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1. The findings and recommendations entered on May 18, 2020 (ECF No. 17) are

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vacated.
2. Within thirty days from the date of this order plaintiff shall file a properly competed in

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forma pauperis application. Plaintiff is warned that failure to file a properly

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completed application will result in a recommendation that this action be dismissed.

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3. The Clerk of the Court shall send plaintiff a copy of the in forma pauperis application
used in this district.

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4. Plaintiff’s complaint (ECF No. 1) is dismissed with leave to amend.

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5. Within sixty (60) days of the date of this order plaintiff shall file an amended

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complaint that complies with the with the requirements of the Civil Rights Act, the
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Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended

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complaint must bear the docket number assigned to this case and must be labeled

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“First Amended Complaint.”

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6. The Clerk of the Court is directed to send plaintiff a copy of the civil rights complaint
form.
7. Plaintiff is warned that his failure to comply with this order will result in a
recommendation that this action be dismissed.

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8. Plaintiff’s request for a court-appointed investigator (ECF No. 5) is denied.

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9. Plaintiff’s motion to add evidence (ECF No. 8) is denied.

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10. Plaintiff’s motion to dismiss state charges (ECF No. 9) is denied.

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11. Plaintiff’s motion to dismiss the Plumas County action (ECF No. 14) is denied.

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12. Plaintiff’s motion to bring forth evidence (ECF No. 16)

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13. Plaintiff’s motion to set aside the filing fee (ECF No. 19) is denied.

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IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s motion to stay (ECF No. 7) be denied; and

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2. Plaintiff’s motion to postpone (ECF No. 13) be denied.

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These findings and recommendations will be 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)(1). Within thirty days after

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

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the court and serve a copy on all parties. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in waiver of the right to appeal the district court’s

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

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Dated: September 14, 2020

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DB:12
DB:1/Orders/Prisoner/Civil.Rights/mile2151.scrn+31c

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