Duff v. Brown et al

Filing 12

ORDER of Dismissal with Leave to Amend. Signed by Judge Edward M. Chen on 6/4/2012. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 6/4/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DEWEY JOE DUFF,

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Plaintiff,

United States District Court
For the Northern District of California

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No. C-12-0529 EMC (pr)
ORDER OF DISMISSAL WITH LEAVE
TO AMEND

v.
GOVERNOR EDMUND G. BROWN, et al.,

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Defendants.
/

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I.

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INTRODUCTION

Dewey Joe Duff, an inmate on death row at San Quentin State Prison, filed this pro se

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prisoner's civil rights action under 42 U.S.C. § 1983. His complaint is now before the Court for

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review under 28 U.S.C. § 1915A.

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II.

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BACKGROUND

In the lengthy complaint, Duff complains that the California process for reviewing capital

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convictions and sentences is unlawfully slow and inadequate. He contends that the complaint

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addresses only the unlawful process and that his conviction is not at issue. See Docket # 1, p. 9. He

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does, however, appear to contend that trial counsel and appellate counsel were ineffective. See id. at

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Although the complaint is 51 pages in length, there are very few facts in it relating to Duff's

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particular situation. The complaint appears to be a photocopy (with a few minute changes) of a

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complaint filed by another death row inmate, Theodore Shove. Indeed, the almost-identical

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complaint has been filed by at least five death row inmates in addition to Duff. See Theodore Shove

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v. Brown, N. D. Cal. Case No. C 12-211 RMW (pending); Paul Bolin v. Brown, N. D. Cal. Case No.
C 12-637 PJH (pending); Richard Vieira v. Brown, E. D. Cal. Case No. 12-cv-0044-AWI-MJS

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(pending); Carlos Avena v. Brown, C. D. Cal. Case No. 12-cv-00485-UA-DUTY (denying in forma

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pauperis application because application was incomplete and the judicial officers had immunity

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from the suit); Spencer Brasure v. Brown, C. D. Cal. Case No. 12-CV-1027-UA-DUTY (denying in

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forma pauperis application because the court lacked jurisdiction; the complaint was frivolous,

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malicious or failed to state a claim; and the complaint sought monetary relief from a defendant

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immune from such relief).

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As a result of Duff's careless presentation of a borrowed pleading, the complaint has facts

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about another prisoner's cases that are irrelevant to Duff's situation and make parts of the complaint

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somewhat nonsensical with regard to Duff. For example, the complaint alleges: "This case has been

United States District Court
For the Northern District of California

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plagued with deliberate acts to Obstruct Justice and Impede Due Administration of Law, deliberate

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delays and abuses of which stems back to Original Filing of CV-09-0656-RMW." Id. at 5 (errors in

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source). Duff is not a party to that case, Shove v. Schwarzenegger, No. C 09-656 RMW, that was

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filed by death row inmate Theodore Shove. Elsewhere the complaint alleges that another case from

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Shove, Shove v. Martel, No. C 11-3707 RMW, was improperly decided. Id. at 6-7; see also id. at

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19-20, 21, 23-24, 35. Duff was not a party to that case either. Duff also failed attach to his

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complaint the numerous exhibits referred to in the text of the complaint.

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The complaint seeks declaratory, injunctive and monetary relief. With regard to the requests

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for declaratory and injunctive relief, the complaint states: "The Relief should be Forthwith as to

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Declaratory of which is established by Law Clearly Defining Rights to be discovered or wrongs to

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be avoided. [¶] Injunctive Relief can be Crafter as This Honorable Court deems appropriate to

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Reestablish Compliance to the Constitution, Laws and Treaties of the United states of America as

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Demanded by Legislative Intent." Docket # 1, p. 50 (errors, emphasis, and capitalization in source).

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III.
A.

DISCUSSION

Review Of The Complaint
A federal court must engage in a preliminary screening of any case in which a prisoner seeks

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redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

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§ 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek
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monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b). Pro se

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pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699

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(9th Cir. 1990).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right

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secured by the Constitution or laws of the United States was violated, and (2) that the violation was

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committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48

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(1988).

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The complaint has numerous defects and must be dismissed. First, the complaint is a

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rambling discussion of theories and legal concepts rather than a statement of claim(s) against

United States District Court
For the Northern District of California

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defendants. Federal Rule of Civil Procedure 8(a)(2) requires "a short and plain statement of the

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claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the statement

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need only . . . give the defendant fair notice of what the . . . claim is and the grounds upon which it

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rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations and internal quotation marks omitted).

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Although a complaint “does not need detailed factual allegations, . . . a plaintiff's obligation to

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provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a

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formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be

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enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state a claim to

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relief that is plausible on its face." Id. at 570. In his amended complaint, Duff must allege a short

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and plain statement of each claim for relief he wishes to assert.

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Second, the declaratory and injunctive relief requests in the complaint are not

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understandable. Duff must allege with more clarity the specific injunctive and declaratory relief he

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requests. If the Court does not understand the relief requested in the amended complaint, the relief

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request will be dismissed.

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Third, the complaint does not link any defendant to a legal claim. In his amended complaint,

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Duff must be careful to allege facts showing the basis for liability for each Defendant. He should

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not refer to them as a group (e.g., "the Defendants"); rather, he should identify each involved

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Defendant by name and link each of them to his claim by explaining what each involved Defendant
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did or failed to do that caused a violation of his rights. See Leer v. Murphy, 844 F.2d 628, 634 (9th

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Cir. 1988). Duff is cautioned that there is no respondeat superior liability under Section 1983, i.e. no

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liability under the theory that one is responsible for the actions or omissions of an employee.

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Liability under Section 1983 arises only upon a showing of personal participation by the Defendant.

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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Fourth, Duff cannot assert claims relating to any alleged violation of the rights of inmate

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Theodore Shove or any other inmate. All the allegations about problems Theodore Shove has

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experienced in his court cases or on death row are dismissed without leave to amend because Duff

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has no standing to complain about problems experienced by another inmate. "[A] litigant appearing

United States District Court
For the Northern District of California

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in propria persona has no authority to represent anyone other than himself." Russell v. United

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States, 308 F.2d 78, 79 (9th Cir. 1962). His allegations that suggest he wants to pursue a class

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action are dismissed because pro se prisoner-plaintiffs are not adequate class representatives able to

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fairly represent and adequately protect the interests of a class. See Oxendine v. Williams, 509 F.2d

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1405, 1407 (4th Cir. 1975).

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Fifth, Duff cannot assert claims for violations of federal criminal law. As a private party,

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Duff has no standing to prosecute a criminal action and has no protected interest in the prosecution

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of another. See Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973) ( "[A] private citizen lacks a

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judicially cognizable interest in the prosecution or nonprosecution of another"); Doyle v. Oklahoma

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Bar Ass'n, 998 F.2d 1559, 1566-67 (10th Cir. 1993) (private citizen has no standing to have lawyer

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disciplined or criminally charged); Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir. 1988) (neither

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member of public at large nor victim has right to have another criminally prosecuted).

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The amended complaint should state the claims for relief with clarity. The rambling,

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citation-filled argumentative complaint fails to satisfy some of the basic purposes of a complaint:

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framing the dispute and giving the Defendants and Court notice of the claims upon which relief is

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sought. The abundant citations and legal arguments are unnecessary and misplaced, as the

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complaint is more about telling the reader what the Plaintiff's claims are rather than why he should

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win.

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B.

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Duff's Motions
Duff filed a "motion for findings and conclusions [and] motion for temporary restraining

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order." (Docket # 9.) He also filed a declaration in support of his motions. (Docket # 10.)

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Generally, the filings do not make sense. The Court does not grant requests it does not understand.

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To the extent the court can make any sense of these filings, they appear to concern the adjudication

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of Theodore Shove's case by Judge Whyte. As stated above, Duff has no standing to complain about

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another inmate's problems in prison or in court. Accordingly, the motions for findings and

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conclusions and for a temporary restraining order are DENIED.

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IV.

CONCLUSION

United States District Court
For the Northern District of California

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The complaint fails to state a claim upon which relief may be granted. Leave to amend is

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granted so that Plaintiff may attempt to state a claim against defendants. The amended complaint

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must be filed no later than June 29, 2012, and must include the caption and civil case number used

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in this order and the words AMENDED COMPLAINT on the first page. Plaintiff is cautioned that

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his amended complaint must be a complete statement of his claims and will supersede existing

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pleadings. See London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981) ("a plaintiff

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waives all causes of action alleged in the original complaint which are not alleged in the amended

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complaint.") Failure to file the amended complaint by the deadline will result in the dismissal of the

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action.

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IT IS SO ORDERED.

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Dated: June 4, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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