(PC) Kern v. Soloman

Filing 15

ORDER signed by Magistrate Judge Dennis M. Cota on 8/27/2024 ORDERING that Plaintiff may file a first amended complaint within 30 days of the date of service of this order. (Huang, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES CURTIS KERN,

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No. 2:24-CV-1040-WBS-DMC-P

Plaintiff,
v.

ORDER

TAMERA LYNN SOLOMAN,
Defendant.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. Pending before the Court is Plaintiff’s original complaint, ECF No. 1.

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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). This provision also applies if the plaintiff was incarcerated at the time the action was

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initiated even if the litigant was subsequently released from custody. See Olivas v. Nevada ex rel.

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Dep’t of Corr., 856 F.3d 1281, 1282 (9th Cir. 2017). The Court must dismiss a complaint or

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portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can

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be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See

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28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that

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complaints contain a “. . . short and plain statement of the claim showing that the pleader is

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entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply,
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concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to

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Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice

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of the plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121,

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1129 (9th Cir. 1996). Because Plaintiff must allege with at least some degree of particularity

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overt acts by specific defendants which support the claims, vague and conclusory allegations fail

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to satisfy this standard. Additionally, it is impossible for the Court to conduct the screening

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required by law when the allegations are vague and conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff James Curtis Kern names Tamera Lynn Soloman as the sole defendant.

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See ECF No. 1, pg. 1. Defendant Soloman is a conflict panel attorney for the Sacramento County

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Superior Court. Plaintiff presents three claims for relief. See id. at 2-7.

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Claim I

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Plaintiff asserts that Defendant Soloman violated his constitutional rights due to

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retaliation. See id. at 4. Plaintiff asserts that he asked Defendant to subpoena his medical

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records, but Defendant never sent Plaintiff’s medical records. See id. at 4. Plaintiff told

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Defendant that his injuries occurred at the Sacramento County Jail, but Defendant showed no

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interest as Plaintiff suffered daily. See id. Plaintiff asserts that he informed Defendant that after

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he submitted multiple medical kits and medical grievances, Plaintiff was tortured and abused by

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deputies, but Defendant never informed the court. See id.

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According to Plaintiff, Judge Davis ordered a doctor to see Plaintiff at Sacramento

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County Jail following a report he had been beaten by a deputy. See id. Defendant received a

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copy of a report that Plaintiff had only been seen by a nurse. See id. Plaintiff asserts that

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Defendant did not want to hear anything about the medical report or the court order requiring

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Plaintiff to see a doctor. See id.

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Plaintiff informed Judge Davis that a nurse briefly saw Plaintiff to assess the

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injuries Plaintiff sustained by the deputy. See id. Plaintiff contends that Judge Davis did not

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believe Plaintiff and Defendant did not intervene on Plaintiff’s behalf. See id. Defendant then

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called a continuance without Plaintiff’s consent for two months. See id. Plaintiff asserts that

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Defendant was retaliating against Plaintiff for previously firing her and submitting a complaint to

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the California State Bar. See id. According to Plaintiff, Defendant’s actions caused him extreme

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pain, torture, and neglect. See id. Plaintiff asserts that Defendant delayed the process of Plaintiff

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receiving adequate help by not notifying the proper authorities of the abuse that was taking place.

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See id.

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Claim II

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Plaintiff asserts that his Sixth Amendment rights were violated because Defendant

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failed to defend Plaintiff in a timely manner. See id. at 5. Plaintiff contends that Defendant

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provided ineffective assistance of counsel in multiple instances. See id.
According to Plaintiff, Defendant provided ineffective assistance of counsel by

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failing to defend Plaintiff in a timely manner. See id. Plaintiff additionally asserts that Defendant

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failed to present Plaintiff’s bail motion to the court even though Defendant was aware of

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Plaintiff’s serious medical needs. See id. Defendant additionally did not present Plaintiff’s

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motion to suppress, knowing that the search warrant was invalid on its face. See id. Plaintiff

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contends that Defendant called for continuances outside of Plaintiff’s presence, depriving

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Plaintiff of a speedy trial for fourteen months. See id. Defendant additionally refused to produce

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Plaintiff’s court transcripts when Plaintiff requested them. See id. Defendant failed to produce

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the present the original surveillance camera footage at trial, knowing the surveillance presented

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had been tampered with several times. See id. Plaintiff contends that Defendant did not obtain

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information about an unknown witness who altered/compromised crucial evidence from

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surveillance footage before the Sacramento Police Department arrived on the scene. See id.

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Plaintiff states that Defendant failed to object to anything at all, allowing suggestively

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impermissible means of identification multiple times throughout the trial. See id.

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Claim III

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Plaintiff contends that Defendant violated his due process right to a speedy trial by

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requesting continuances to show Plaintiff up to twenty videos. See id. at 6. According to

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Plaintiff, Defendant never showed Plaintiff these videos or produced the videos at trial. See id.

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Plaintiff claims that Defendant informed the judge that Plaintiff had seen all the videos, which

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was untrue. See id. Defendant did not produce the original video footage for the defense to show

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the jury during the trial. See id. Instead, Defendant’s continuances were a strategy to move the

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case beyond the speedy trial deadlines. See id.

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Plaintiff contends that when a judge informed both parties that he would have to

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release Plaintiff, Defendant requested an extension. See id. Plaintiff argues that his right to a

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speedy trial was acknowledged in December of 2022, but he did not go to trial until January 2024.

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See id. Plaintiff asserts that, due to Defendant’s actions, the district attorney could form a false

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case and use photoshop videos as crucial evidence to gather witnesses that Plaintiff did not

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recognize. See id.

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II. DISCUSSION

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The Court finds that Plaintiff appears to state a cognizable retaliation claim as

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alleged in Claim I. Claims II and III, however, appeared to be barred pursuant to Heck v.

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Humphrey.
A.

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Claim I

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In Claim I, Plaintiff alleges that Defendant Soloman, who was his court-appointed

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defense counsel, interfered with his ability to obtain medical care while in jail and that Defendant

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did this in retaliation for Plaintiff having previously fired her as his attorney. The threshold

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question concerning this Court's jurisdiction under § 1983 is whether Defendant Soloman was

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acting under color of law.

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When public defenders are acting in their role as advocate, they are not acting

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

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Polk Cnty. v. Dodson, 454 U.S. 312, 320–25 (1981); Jackson v. Brown, 513 F.3d 1057, 1079 (9th

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Cir. 2008); see also Vermont v. Brillon, 556 U.S. 81, 91 (2009). Where, however, public

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defenders are performing administrative or investigative functions, they may be acting under

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color of state law. See Brillon, 556 U.S. at 91 n.7; Polk Cnty., 454 U.S. at 324–25.

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Here, the facts alleged are not clear as to what capacity Defendant Soloman was

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acting in committing the alleged wrongful acts. Assuming Plaintiff's allegations are true, as the

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Court must at this stage of the proceedings, it appears that Defendant Soloman attempted to

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thwart Plaintiff's ability to obtain medical care because Plaintiff had previously dismissed her as

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his attorney. While it not clear that Defendant's alleged conduct can be considered administrative

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or investigative such as she could be considered a state actor, the Court will allow the claim to

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proceed.

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B.

Claims II and III
In Claims II and III, Plaintiff alleges that Defendant Soloman provided ineffective

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assistance of counsel in the context of criminal proceedings. It is unclear on the current facts

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alleged whether these claims are barred.

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When a state prisoner challenges the legality of his custody and the relief he seeks

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is a determination that he is entitled to an earlier or immediate release, such a challenge is not

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cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal remedy is a petition for a writ

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of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda,

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131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir.

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1995) (per curiam). Thus, where a § 1983 action seeking monetary damages or declaratory relief

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alleges constitutional violations which would necessarily imply the invalidity of the prisoner’s

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underlying conviction or sentence, or the result of a prison disciplinary hearing resulting in

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imposition of a sanction affecting the overall length of confinement, such a claim is not

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cognizable under § 1983 unless the conviction or sentence has first been invalidated on appeal, by

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habeas petition, or through some similar proceeding. See Heck v. Humphrey, 512 U.S. 477, 4835

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84 (1994)

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Here, Plaintiff claims that Defendant Soloman provided ineffective assistance of

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counsel during the course of criminal proceedings. If Plaintiff were to succeed on the merits of

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these claims, the result would necessarily imply the invalidity of underlying criminal proceedings

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which resulted in Plaintiff's current incarceration due to violation of Plaintiff's Sixth Amendment

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rights. The current complaint, however, does not allow the Court to determine whether the claims

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are barred because it is unclear whether the criminal proceedings involving Defendant Soloman

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as Plaintiff's counsel resulted in his current conviction and incarceration. If so, it remains unclear

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whether the result of these proceedings has been set aside or otherwise invalidated.

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The Court will provide Plaintiff an opportunity to file an amended complaint to

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clarify these points should he wish to proceed with Claims II and III. If no amended complaint is

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filed within the time provided, the Court will order that Defendant be served and respond to

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Claim I.

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III. CONCLUSION
Because it is possible that the deficiencies identified in this order may be cured by

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amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d

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1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an

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amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,

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1262 (9th Cir. 1992). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the

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prior 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 between

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each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167

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(9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
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Because the complaint appears to otherwise state cognizable claims, if no amended

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complaint is filed within the time allowed therefor, the Court will issue findings and

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recommendations that the claims identified herein as defective be dismissed, as well as such

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further orders as are necessary for service of process as to the cognizable claims.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a first amended
complaint within 30 days of the date of service of this order.

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Dated: August 27, 2024

____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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