Rodriguez v. Berryhill et al

Filing 14

ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND; DIRECTIONS TO CLERK. Signed by Judge Maxine M. Chesney on February 4, 2014. (mmclc1, COURT STAFF) (Filed on 2/4/2014) (Additional attachment(s) added on 2/4/2014: # 1 Certificate/Proof of Service) (tlS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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PEDRO RODRIGUEZ,
Plaintiff,

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No. C-14-0126 MMC
ORDER DISMISSING COMPLAINT
WITHOUT LEAVE TO AMEND;
DIRECTIONS TO CLERK

v.

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JOHN BERRYHILL, et al.,

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Defendants.

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Before the Court is plaintiff’s complaint, filed January 9, 2014. By order filed January

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21, 2014, plaintiff’s application to proceed in forma pauperis was granted.1 Where a

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plaintiff proceeds in forma pauperis, the district court, pursuant to 28 U.S.C. § 1915(e),

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must dismiss the complaint if the court determines the complaint fails to state a claim upon

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which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). Here, for the reasons

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stated below, the Court finds the complaint fails to state a claim, and, accordingly, will

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dismiss the complaint.

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In his complaint, plaintiff alleges that the four defendants named therein deprived

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him of due process in violation of 42 U.S.C. § 1983. As the factual basis of his claim,

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plaintiff alleges he was “arrested for crimes of stalking and using computers to commit the

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crime of stalking,” and the San Mateo District Attorney thereafter instituted criminal

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The above-titled action was reassigned to the undersigned on January 23, 2014.

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proceedings against him (see Compl. ¶¶ 8-9); plaintiff also alleges that, pursuant to the

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county’s “private defender program,” he was initially appointed counsel, that the trial court

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subsequently granted his request to represent himself and “instructed” his previously

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appointed counsel to act as “standby counsel” (see Compl. ¶¶ 6-7, 9), after which, during

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the course of his criminal proceedings, he was “assigned” a “forensic expert” (see Compl.

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¶ 5), and that he thereafter was convicted and judgment against him was entered on April

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20, 2012 (see Compl. Attachment A, first page).

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Plaintiff alleges his conviction was the result of each defendant’s having failed to
provide him with “due process.” (See Compl. ¶ 11.) Specifically, plaintiff alleges,

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(1) defendant Tricia Povah (“Povah”), the district attorney assigned to the case, did “not

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releas[e] evidence” that was “exculpatory” in nature (see Compl. ¶¶ 10-11); (2) defendant

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Kevin Nowack (“Nowack”), the “standby counsel,” “interfer[ed]” with plaintiff’s “right to

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conduct his own hearing” by “redacting files,” by “not providing exculpatory evidence,” and

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by “convinc[ing] him to use bad case law” (see Compl. ¶ 11); (3) defendant Jon Berryhill

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(“Berryhill”), the “forensic expert,” “did not cooperate with plaintiff nor provide complete

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files” and “refused” to provide “expert testimony” without being paid a “minimum $2500

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retainer” (see Compl. ¶ 11, Attachment F); and (4) defendant Myra Weiher (“Weiher”), the

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“assistant chief defender in the private defender program,” did not hold Berryhill

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“accountable” for his failure to “prove evidence was placed on [plaintiff’s] computer” and for

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“severely redacting files” (see Compl. ¶ 11).

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Because, as set forth above, plaintiff was convicted and his claims challenge the

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legitimacy of the conviction, the Court finds plaintiff’s complaint fails to state a cognizable

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claim under § 1983. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (holding, where

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plaintiff seeks “damages for [an] allegedly unconstitutional conviction or imprisonment, or

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

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sentence invalid,” plaintiff cannot seek relief unless “the conviction or sentence has been

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reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal

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authorized to make such determination, or called into question by a federal court’s
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issuance of a writ of habeas corpus, 28 U.S.C. § 2254”). Further, because plaintiff’s

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appeal from the conviction remains pending before the California Court of Appeal, see

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Docket, People v Rodriguez, California Court of Appeal Case No. A134782,2 plaintiff

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cannot show his conviction has been reversed or otherwise has been set aside.

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Plaintiff’s § 1983 claim against Povah, which claim, as noted, is based on Povah’s

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alleged failure to provide plaintiff with exculpatory evidence, is subject to dismissal for the

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additional reason that she is entitled to absolute immunity. See Broam v. Bogan, 320 F.3d

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1023, 1030 (9th Cir. 2003) (holding prosecutor entitled to “absolute immunity” from claim

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based on prosecutor’s failure to “turn over exculpatory material”).

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Plaintiffs § 1983 claims against attorneys Nowack and Weiher, which claims, as

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noted, are based on their alleged failure to properly assist plaintiff in presenting his case

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and/or to oversee plaintiff’s expert witness, are subject to dismissal for the additional

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reason that defense attorneys are not subject to suit under § 1983 for actions taken in

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connection with representing a criminal defendant. See Polk County v. Dodson, 454 U.S.

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312, 324-25 (1981) (holding attorney cannot be sued under § 1983 for acts taken in

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connection with providing legal representation to criminal defendant).

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Lastly, plaintiff’s § 1983 claim against Berryhill, which claim, as noted, is based on

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his failure to provide certain types of expert services to plaintiff, is subject to dismissal for

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the additional reason that Berryhill, a private party who is president of a computer forensics

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company (see Compl. Attachment F), was not acting under color of state law. See Polk

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County, 454 U.S. at 317-18 (holding defendant does not act under color of state law, and,

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consequently, cannot be liable under § 1983, unless he was “exercising power possessed

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by virtue of state law and made possible only because the [defendant] is clothed with the

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authority of state law”) (internal quotation and citation omitted).

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Pursuant to Rule 201 of the Federal Rules of Evidence, the Court takes judicial
notice of the official docket of the California Court of Appeal, available electronically at
http://appellatecases.courtinfo.ca.gov. According to the docket, plaintiff received a fiveyear, four-month state prison sentence, and thereafter filed a notice of appeal, which
remains pending determination before the Court of Appeal.
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In sum, the complaint is subject to dismissal in its entirety. Further, in light of the

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nature of the deficiencies identified above, the Court finds that affording plaintiff leave to

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amend would be futile. See Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir.

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1998) (affirming order dismissing complaint without leave to amend, where “any

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amendment would be an exercise in futility”).

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Accordingly, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), plaintiff’s complaint is hereby
DISMISSED without leave to amend, and the Clerk is DIRECTED to close the file.
IT IS SO ORDERED.

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Dated: February 4, 2014
MAXINE M. CHESNEY
United States District Judge

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