Howard v. Brown et al

Filing 9

ORDER OF DISMISSAL WITH LEAVE TO AMEND re 1 Complaint filed by Demetrius Howard. Signed by Judge James Donato on 5/6/14. (lrcS, COURT STAFF) (Filed on 5/7/2014) (Additional attachment(s) added on 5/7/2014: # 1 Certificate/Proof of Service) (lrcS, COURT STAFF).

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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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ORDER OF DISMISSAL WITH LEAVE
TO AMEND

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

United States District Court
Northern District of California

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983.

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He has been granted leave to proceed in forma pauperis.
DISCUSSION

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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

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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:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that
the alleged deprivation was committed by a person acting under the color of state law. West v.

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United States District Court
Northern District of California

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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 seeks 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. Named

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

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all certified death penalty attorneys in California.

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The Court notes that plaintiff’s complaint is nearly identical to several “form” complaints

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

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

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

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state a claim and for Younger abstention); Paul Bolin v. Brown, N. D. Cal. Case No. C 12-637 PJH

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(transferred to Eastern District of California, who ultimately dismissed complaint under Younger

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and Heck, and for failure to state a claim); Richard Vieira v. Brown, E. D. Cal. Case No. 12-cv-

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0044-AWI-MJS (dismissed for failure to state a claim and pursuant to Younger and Heck); Carlos

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Avena v. Brown, C. D. Cal. Case No. 12-cv-00485-UA-DUTY (denying in forma pauperis
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application because application was incomplete and the judicial officers had immunity from the

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

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

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

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such relief).

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As this is a form complaint, there are few facts or allegations specific to plaintiff, and the
majority of the complaint is a rambling discussion of theories and legal concepts. Plaintiff has

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been represented by counsel in his state direct appeal proceedings, and his current represented

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state habeas petition, California Supreme Court case no. S196958, is pending. Under principles of

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comity and federalism, a federal court should not interfere with ongoing state criminal proceedings

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United States District Court
Northern District of California

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absent extraordinary circumstances. See Younger v. Harris, 401 U.S. 37, 43–54 (1971). The

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rationale of Younger also applies throughout appellate proceedings, requiring that state appellate

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review of a state court judgment be exhausted before federal court intervention is permitted. See

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Dubinka v. Judges of the Superior Court, 23 F.3d 218, 223 (9th Cir. 1994).

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Plaintiff also fails to link any specific defendant to a legal claim, his request that the Court

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review state practices is far too broad, and the specific relief he seeks is not clear. The complaint

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will be dismissed with leave to amend so plaintiff may attempt to cure these deficiencies.
CONCLUSION

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1.

The complaint is DISMISSED with leave to amend in accordance with the

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standards set forth above. The amended complaint must be filed within twenty-eight (28) days of

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the date this order is filed and must include the caption and civil case number used in this order

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and the words AMENDED COMPLAINT on the first page. Because an amended complaint

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completely replaces the original complaint, plaintiff must include in it all the claims he wishes to

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present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate

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material from the original complaint by reference. Failure to amend within the designated time

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will result in the dismissal of this action.

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2.

It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the

Court informed of any change of address by filing a separate paper with the clerk headed “Notice
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of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

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do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of

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Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: May 6, 2014
______________________________________
JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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13-cv-03009-JD-_dwlta

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