Tate v. California Appellate Attorneys et al

Filing 5

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Plaintiff must file an amended complaint within 28 days from the date of this order. Signed by Judge Nathanael Cousins on 3/13/14. (Attachments: # 1 Certificate/Proof of Service)(lmh, COURT STAFF) (Filed on 3/13/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C 14-0080 NC (PR)

GREGORY TATE,
Plaintiff,

v.
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CALIFORNIA APPELLATE ATTORNEYS,
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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

Defendants.

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Plaintiff, a California inmate on death row at San Quentin State Prison, filed this pro

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se civil rights complaint pursuant to 42 U.S.C. § 1983, complaining that the California

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process for reviewing capital convictions and sentences is unlawfully slow and inadequate.

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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

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prisoner seeks redress from a governmental entity or officer or employee of a governmental

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entity. See 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable

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claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon

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which relief may be granted, or seek monetary relief from a defendant who is immune from

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such relief. See id. at § 1915A(b). Pro se pleadings must be liberally construed. See

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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,

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

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The complaint has several defects and must be dismissed with limited leave to amend.

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First, plaintiff 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 complaints urging

United States District Court
For the Northern District of California

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similar theories.1 For example, rather than provide any information about the delay, if any,

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that he has experienced in his own appeal, he alleges that in California it generally takes five

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to seven years for appointment of appellate counsel, and seventeen years for appointment of

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counsel on state habeas. Docket # 1, p. 4. Plaintiff should know the facts of his own case,

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e.g., when he was convicted and sentenced, when his appellate attorney was appointed, if and

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when his appellate brief and reply briefs were filed, and whether state habeas counsel has

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been appointed for him. Plaintiff must confine his amended complaint to allegations about

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his specific factual situation, and not about the death penalty in general. His amended

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complaint must have “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). “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

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which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations and internal quotation

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marks omitted). Although a complaint “does not need detailed factual allegations, . . . a

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plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more

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

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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
28 PJH; Vieira v. Brown, E. D. Cal. Case No. 12-cv-0044-AWI-MJS.
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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted).

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Second, some of plaintiff’s claims impliedly call into question his conviction, such as

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

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slow process for challenging capital convictions impedes the investigation and presentation

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of evidence necessary to obtain a reversal. Plaintiff may not assert any § 1983 claim that

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would call into question the validity of his conviction as long as the conviction remains in

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place. The case of Heck v. Humphrey, 512 U.S. 477 (1994), held that a plaintiff cannot bring

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a civil rights action for damages for a wrongful conviction or imprisonment, or for other

United States District Court
For the Northern District of California

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harm caused by actions whose unlawfulness would render a conviction or sentence invalid,

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unless that conviction or sentence already has been determined to be wrongful. See id. at

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486-87. A conviction or sentence may be determined to be wrongful by, for example, being

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reversed on appeal or being set aside when a state or federal court issues a writ of habeas

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corpus. See id. The Heck rule also prevents a person from bringing an action that – even if

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it does not directly challenge the conviction or other decision – would imply that the

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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

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

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rule was first announced with respect to an action for damages, but the Supreme Court has

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since applied the rule to an action that sought declaratory relief as well as damages.

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See Edwards v. Balisok, 520 U.S. 641, 648 (1997). If success in the § 1983 action would

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“necessarily demonstrate the invalidity of confinement or its duration,” the § 1983 action is

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barred no matter the relief sought (i.e., damages or equitable relief) as long as the conviction

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has not been set aside. Wilkinson v. 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, plaintiff 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
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them to his claim by explaining what each involved defendant did or failed to do that caused

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

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

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

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§ 1983 arises only upon a showing of personal participation by the defendant. Taylor v. List,

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

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

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legally meritless in ways that are not curable by amendment. The claim that the slowness in

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the process of challenging criminal convictions amounts to a suspension of the writ of habeas

United States District Court
For the Northern District of California

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corpus in violation of the federal constitution is dismissed because that provision has no

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application to the states. See Gascquet v. Lapeyer, 242 U.S. 367, 369 (1917). The claim that

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plaintiff has a conflict with his appellate and habeas counsel is dismissed because (in

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addition to the potential Heck problem with such a claim), the appointed attorneys are not

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acting under color of state law, an essential element of an action under 42 U.S.C. § 1983,

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when performing a lawyer’s traditional functions in state criminal proceedings. See Polk

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County v. Dodson, 454 U.S. 312, 318-19 (1981).

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

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understandable. Plaintiff must allege with more clarity the specific injunctive and

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declaratory relief he requests. In light of the Heck problem mentioned earlier, as well as the

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rule that a petition for writ of habeas corpus under 28 U.S.C. § 2254 is the exclusive federal

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avenue to challenge the fact or duration of one’s confinement, it is particularly important that

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the scope of the requested relief be understood.
CONCLUSION

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The complaint is dismissed with leave to amend. If plaintiff believes he can

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cure the above-mentioned deficiencies in good faith, plaintiff must file an AMENDED

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COMPLAINT within twenty-eight (28) days from the date of this order. The pleading must

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be simple and concise and must include the caption and civil case number used in this order

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(14-0080 NC (PR)) and the words AMENDED COMPLAINT on the first page. Failure to
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file an amended complaint within the designated time and in accordance with this order

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will result in a finding that further leave to amend would be futile and this action will

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be dismissed. The Clerk of the Court is directed to send plaintiff a blank civil rights form

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along with his copy of this order.

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2.

Plaintiff is advised that an amended complaint supersedes the original

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complaint. “[A] plaintiff waives all causes of action alleged in the original complaint which

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are not alleged in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811,

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814 (9th Cir. 1981). Defendants not named in an amended complaint are no longer

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defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

United States District Court
For the Northern District of California

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3.

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

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Court informed of any change of address by filing a separate paper with the Clerk headed

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“Notice of Change of Address,” and must comply with the Court’s orders in a timely fashion.

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

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Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:

March 13, 2014
NATHANAEL M. COUSINS
United States Magistrate

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