Howard v. Brown et al

Filing 16

ORDER DISMISSING CASE. Signed by Judge James Donato on 9/3/14. (lrcS, COURT STAFF) (Filed on 9/4/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DEMETRIUS HOWARD,

Case No. 13-cv-03009-JD

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Plaintiff,

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ORDER OF DISMISSAL
v.

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United States District Court
Northern District of California

Re: Dkt. No. 15
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EDMUND G. BROWN, et al.,

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Defendants.

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Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983. The
complaint was dismissed with leave to amend and plaintiff has filed an amended complaint.

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DISCUSSION
I.

STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 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. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed

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factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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

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

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

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standard of Twombly: “While legal conclusions can provide the framework of a complaint, they

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must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

United States District Court
Northern District of California

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

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the alleged deprivation was committed by a person acting under the color of state law. West v.

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Atkins, 487 U.S. 42, 48 (1988).

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II.

LEGAL CLAIMS

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Plaintiff, a condemned prisoner, states that the California capital case appellate process is

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invalid and denies due process. Plaintiff’s direct appeal was denied in People v. Howard, 51 Cal.

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4th 15 (2010), and he is currently seeking habeas relief in state court. For relief in this case,

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plaintiff asks this Court to examine the current policies and practices of the state death penalty

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appeal process and determine whether they are in compliance with state and federal law. Plaintiff

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names as defendants the California Supreme Court Justices, various state agencies and officials

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and several certified death penalty attorneys in California.

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The Court notes that plaintiff’s original complaint was nearly identical to several “form”

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complaints that have been filed by other death row inmates, with a few minor differences. See

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Theodore Shove v. Brown, N. D. Cal. Case No. C 12-211 RMW (dismissed for failure to state a

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claim and affirmed on appeal); Duff v. Brown, N. D. Cal. Case No. C 12-529 EMC (dismissed for

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failure to state a claim and for Younger abstention); Paul Bolin v. Brown, N. D. Cal. Case No. C

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12-637 PJH (transferred to Eastern District of California, who ultimately dismissed complaint
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under Younger and Heck, and for failure to state a claim); Richard Vieira v. Brown, E. D. Cal.

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Case No. 12-cv-0044-AWI-MJS (dismissed for failure to state a claim and pursuant to Younger

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

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

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

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(denying in forma pauperis application because the court lacked jurisdiction; the complaint was

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

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defendant immune from such relief).
While plaintiff’s amended complaint is not the exact “form” complaint from before, it still

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contains the same underlying allegations that the California Supreme Court’s policies for death

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United States District Court
Northern District of California

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penalty cases are unconstitutional and plaintiff’s appointed death penalty attorneys have a conflict

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of interest. As noted in the prior screening order, under principles of comity and federalism, a

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federal court should not interfere with ongoing state criminal proceedings absent extraordinary

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circumstances. See Younger v. Harris, 401 U.S. 37, 43–54 (1971). The rationale of Younger also

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applies throughout appellate proceedings, requiring that state appellate review of a state court

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judgment be exhausted before federal court intervention is permitted. See Dubinka v. Judges of

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the Superior Court, 23 F.3d 218, 223 (9th Cir. 1994).
Plaintiff’s state habeas petition is ongoing and plaintiff may file a federal habeas petition if

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he wishes. If plaintiff does not agree with the strategy of his attorneys, he should address those

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concerns with his attorneys and the courts where his cases are currently pending. To the extent

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plaintiff seeks the reversal of his conviction he must pursue that relief in a habeas petition pursuant

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to 28 U.S.C. § 2254, once the claims have been exhausted. 1 The relief plaintiff seeks is also

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barred by Heck v. Humphrey, 512 U.S. 477 (1994). While plaintiff does not seek money damages,

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judgment in his favor in this action would necessarily imply the invalidity of his conviction or

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The Court notes that the California death penalty was recently declared unconstitutional in Jones
v. Chappell, --- F.Supp.2d----, 2014 WL3567365 (C.D. Cal., July 16, 2014). However, that ruling
in the District Court for the Central District of California was brought pursuant to 28 U.S.C. §
2254. This Court is not bound by that decision and no injunction was issued in that case as the
relief only applied to that petitioner.
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sentence. Id. at 487.

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CONCLUSION

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1.

The complaint is DISMISSED for failure to state a claim.

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2.

The motion to appoint counsel (Docket No. 15) is DENIED as this action is

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dismissed.

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3.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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The Clerk shall close this case.

Dated: September 3, 2014
______________________________________
JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DEMETRIUS HOWARD,

Case No. 13-cv-03009-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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EDMUND G. BROWN, et al.,
Defendants.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on 9/4/2014, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Demetrius Howard ID: C-92812
San Quentin State Prison
San Quentin, CA 94974

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Dated: 9/4/2014

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Richard W. Wieking
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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