DeBose v. George et al

Filing 3

ORDER OF DISMISSAL WITH LEAVE TO AMEND (Illston, Susan) (Filed on 4/18/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DONALD R. DeBOSE,

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United States District Court
For the Northern District of California

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No. C 12-6169 SI (pr)

Plaintiff,

ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.
GOVERNOR EDMUND G. BROWN;
et al.,
Defendants.
/

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INTRODUCTION

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Donald R. DeBose, an inmate on death row at San Quentin State Prison, filed this pro se
prisoner's civil rights action under 42 U.S.C. § 1983, complaining that the California process for
reviewing capital convictions and sentences is unlawfully slow and inadequate. His complaint
is now before the court for review under 28 U.S.C. § 1915A.

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DISCUSSION

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A federal court must engage in a preliminary screening of any case in which a prisoner
seeks redress from a governmental entity or officer or employee of a governmental entity. See
28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss
any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted,
or seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b).
Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (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

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

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988).
The complaint has several defects and must be dismissed with limited leave to amend.

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First, DeBose has no standing to complain about problems experienced by any other inmate.

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"[A] litigant appearing in propria persona has no authority to represent anyone other than

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himself." Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962). His complaint is quite

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generic, and is one of several from death row inmates who have filed extremely similar

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United States District Court
For the Northern District of California

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complaints urging similar theories.1 For example, rather than provide any information about the

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delay, if any, that he has experienced in his own appeal, he alleges that it takes "3-6 year[s]" for

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appointment of appellate counsel, and another "5-8 years" for a direct appeal to be filed. Docket

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# 1, p. 4. Surely he knows the facts of his own case, e.g., when he was convicted and sentenced,

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when his appellate attorney was appointed, if and when his appellate brief and reply briefs were

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filed, and whether state habeas counsel has been appointed for him. DeBose must confine his

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amended complaint to allegations about his specific factual situation, and not about the death

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penalty in general. His amended complaint must have "a short and plain statement of the claim

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showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "Specific facts are not

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necessary; the statement need only . . . give the defendant fair notice of what the . . . claim is and

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the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations and

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internal quotation marks omitted). Although a complaint “does not need detailed factual

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allegations, . . . a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief'

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requires more than labels and conclusions, and a formulaic recitation of the elements of a cause

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of action will not do. . . . Factual allegations must be enough to raise a right to relief above the

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See, e.g., Theodore Shove v. Brown, N. D. Cal. Case No. C 12-211 RMW; Duff v. Brown, N.
D. Cal. Case No. 12-529 EMC; Paul Bolin v. Brown, N. D. Cal. Case No. C 12-637 PJH; Vieira v.
Brown, E. D. Cal. Case No. 12-cv-0044-AWI-MJS; Carlos Avena v. Brown, C. D. Cal. Case No.
12-cv-00485-UA-DUTY; Spencer Brasure v. Brown, C. D. Cal. Case No. 12-CV-1027-UA-DUTY.
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speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).

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Second, some of DeBose's claims impliedly call into question his conviction, such as his

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assertions that he has been denied effective assistance of counsel on appeal, and that the slow

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appeal is interfering with his future ability to obtain a reversal or a fair trial upon remand. See

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Blair v. Martel, 645 F.3d 1151, 1157-58 (9th Cir. 2011) (distinguishing between claim about

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present harm of delayed appeal and claim about future harm of delayed appeal). DeBose may

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not assert any § 1983 claim that would call into question the validity of his conviction as long

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as the conviction remains in place. The case of Heck v. Humphrey, 512 U.S. 477 (1994), held

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that a plaintiff cannot bring a civil rights action for damages for a wrongful conviction or

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United States District Court
For the Northern District of California

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imprisonment, or for other harm caused by actions whose unlawfulness would render a

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conviction or sentence invalid, unless that conviction or sentence already has been determined

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to be wrongful. See id. at 486-87. A conviction or sentence may be determined to be wrongful

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by, for example, being reversed on appeal or being set aside when a state or federal court issues

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a writ of habeas corpus. See id. The Heck rule also prevents a person from bringing an action

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that -- even if it does not directly challenge the conviction or other decision -- would imply that

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the conviction or other decision was invalid. The practical importance of this rule is that a

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plaintiff cannot attack his conviction in a civil rights action for damages; the decision must have

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been successfully attacked before the civil rights action for damages is filed. The Heck rule was

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first announced with respect to an action for damages, but the Supreme Court has since applied

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the rule to an action that sought declaratory relief as well as damages. See Edwards v. Balisok,

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520 U.S. 641, 648 (1997). If success in the § 1983 action would "necessarily demonstrate the

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invalidity of confinement or its duration," the § 1983 action is barred no matter the relief sought

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(i.e., damages or equitable relief) as long as the conviction has not been set aside. Wilkinson v.

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Dotson, 544 U.S. 74, 81-82 (2005).

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

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complaint, DeBose must be careful to allege facts showing the basis for liability for each

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defendant for each of his legal claims. He should not refer to them as a group (e.g., "the

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defendants"); rather, he should identify each involved defendant by name and link each of them
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to his claim by explaining what each involved defendant did or failed to do that caused a

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violation of his rights. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). DeBose is

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cautioned that there is no respondeat superior liability under Section 1983, i.e. no liability under

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

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Section 1983 arises only upon a showing of personal participation by the defendant. Taylor v.

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List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Fourth, the complaint does not adequately allege any conspiracy liability because the

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conspiracy allegations are mere conclusions. Conclusory allegations of a conspiracy which are

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not supported by material facts are insufficient to state a claim. See Simmons v. Sacramento

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United States District Court
For the Northern District of California

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County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003); Woodrum v. Woodward County,

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866 F.2d 1121, 1126 (9th Cir. 1989). "'A civil conspiracy is a combination of two or more

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persons who, by some concerted action, intend to accomplish some unlawful objective for the

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purpose of harming another which results in damage.'" See Gilbrook v. City of Westminster, 177

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F.3d 839, 856 (9th Cir. 1999) (citation omitted). A civil plaintiff "must show that the conspiring

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parties reached a unity of purpose or a common design and understanding, or a meeting of the

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minds in an unlawful arrangement." Id. (internal citation and quotation marks omitted). A

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conspiracy is not itself a constitutional tort under 42 U.S.C. § 1983, but may "enlarge the pool

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of responsible defendants by demonstrating their causal connections to the violation." Lacey

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v. Maricopa County, 693 F.3d 896, 935 (9th Cir. 2012) (en banc). In his amended complaint,

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DeBose may attempt to plead conspiracy-based liability for his claims but must provide non-

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conclusory allegations sufficient to state a claim based on conspiracy-based liability. As to each

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conspiracy he alleges existed, he should explain the role of each defendant in the conspiracy.

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He needs to allege with particularity who made an agreement with whom, when the agreement

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was made, what the agreement was, and what the purpose of the agreement was. He also needs

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to identify the role of each individual defendant in these conspiracy-based claims.

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Fifth, some of the claims are dismissed without leave to amend because they are legally

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meritless in ways that are not curable by amendment. The claim that the California Supreme

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Court's slowness in handling appeals violates the prohibition on bills of attainder is dismissed
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because there is no legislative act at issue. See United States v. Lovett, 328 U.S. 303, 315

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(1946); Cummings v. Missouri, 71 U.S. 277, 323 (1866). The claim that the slowness in the

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direct appeal process amounts to a suspension of the writ of habeas corpus in violation of the

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federal constitution is dismissed because that provision has no application to the states.

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See Gascquet v. Lapeyer, 242 U.S. 367, 369 (1917). The claim that DeBose has a conflict with

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his appellate attorneys is dismissed because (in addition to the potential Heck problem with such

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a claim), the appointed appellate attorneys are not acting under color of state law, an essential

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element of an action under 42 U.S.C. § 1983, when performing a lawyer’s traditional functions

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in representing the defendant on appeal. See Polk County v. Dodson, 454 U.S. 312, 318-19

United States District Court
For the Northern District of California

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(1981).

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Finally, DeBose must provide more specific declaratory and injunctive relief requests.

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In light of the Heck problem mentioned earlier in this order, as well as the rule that a petition for

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writ of habeas corpus under 28 U.S.C. § 2254 is the exclusive federal avenue to challenge the

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fact or duration of one's confinement, it is particularly important that the scope of the requested

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relief be understood so that these rule are not undermined.

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CONCLUSION

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For the foregoing reasons, the complaint is dismissed with leave to amend. The amended

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complaint must be filed no later than May 17, 2013, and must include the caption and civil case

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number used in this order and the words AMENDED COMPLAINT on the first page. Plaintiff

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is cautioned that his amended complaint must be a complete statement of his claims. See Lacey,

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693 F.3d at 928 ("For claims dismissed with prejudice and without leave to amend, we will not

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require that they be repled in a subsequent amended complaint to preserve them for appeal. But

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for any claims voluntarily dismissed, we will consider those claims to be waived if not repled.")

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

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IT IS SO ORDERED.
Dated: April 18, 2013

_______________________
SUSAN ILLSTON
United States District Judge

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