McCullom v. O'Malley et al

Filing 20

ORDER OF DISMISSAL WITH LEAVE TO AMEND: Second Amended Complaint due by 7/13/2016.. Signed by Judge Thelton E. Henderson on 6/15/16. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 6/16/2016)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

KEVIN LEE McCULLOM,

Case No.

16-cv-0899-TEH

Plaintiff,
8
v.

ORDER OF DISMISSAL WITH LEAVE
TO AMEND

9
10

NANCY O’MALLEY, et. al.,
Defendants.

United States District Court
Northern District of California

11
12
13

Plaintiff, a detainee, filed this pro se civil rights action

14

under 42 U.S.C. § 1983.

15

with leave to amend and Plaintiff has filed a first amended

16

complaint.

The original complaint was dismissed

17

I

18

Federal courts must engage in a preliminary screening of

19

cases in which prisoners seek redress from a governmental entity

20

or officer or employee of a governmental entity.

21

1915A(a).

22

the complaint, or any portion of the complaint, if the complaint

23

“is frivolous, malicious, or fails to state a claim upon which

24

relief may be granted,” or “seeks monetary relief from a

25

defendant who is immune from such relief.”

26

Pleadings filed by pro se litigants, however, must be liberally

27

construed.

28

Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir.

28 U.S.C. §

The Court must identify cognizable claims or dismiss

Id. § 1915A(b).

Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010);

1
2

1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must

3

allege two essential elements:

4

Constitution or laws of the United States was violated, and (2)

5

that the alleged violation was committed by a person acting under

6

the color of state law.

7

(1) that a right secured by the

West v. Atkins, 487 U.S. 42, 48 (1988).
II

8

Plaintiff alleges that a superior court judge, several

9

district attorneys and various public defenders are conspiring to

10

have him and other African-Americans prosecuted.

United States District Court
Northern District of California

11

Under principles of comity and federalism, a federal court

12

should not interfere with ongoing state criminal proceedings by

13

granting injunctive or declaratory relief absent extraordinary

14

circumstances.

15

Federal courts should not enjoin pending state criminal

16

prosecutions absent a showing of the state's bad faith or

17

harassment, or a showing that the statute challenged is

18

"flagrantly and patently violative of express constitutional

19

prohibitions."

20

inconvenience of criminal defense not kind of special

21

circumstances or irreparable harm that would justify federal

22

court intervention; statute must be unconstitutional in every

23

"clause, sentence and paragraph, and in whatever manner" it is

24

applied).

25

See Younger v. Harris, 401 U.S. 37, 43-54 (1971).

Younger, 401 U.S. at 46, 53-54 (cost, anxiety and

Abstention may be inappropriate in the "extraordinary

26

circumstance" that (1) the party seeking relief in federal court

27

does not have an adequate remedy at law and will suffer

28

irreparable injury if denied equitable relief, see Mockaitis v.
2

1

Harcleroad, 104 F.3d 1522, 1528 (9th Cir. 1997) (citing Younger,

2

401 U.S. at 43-44), or (2) the state tribunal is incompetent by

3

reason of bias, see Gibson v. Berryhill, 411 U.S. 564, 577-79

4

(1973).

5

honesty and integrity in those serving as adjudicators.

6

Hirsh v. Justices of the Supreme Court of Cal., 67 F.3d 708, 713

7

(9th Cir. 1995) (citation omitted).

8
9

A party who alleges bias must overcome a presumption of
See

A state judge is absolutely immune from civil liability for
damages for acts performed in his judicial capacity.

See Pierson

v. Ray, 386 U.S. 547, 553-55 (1967) (applying judicial immunity

11
United States District Court
Northern District of California

10

to actions under 42 U.S.C. § 1983).

12

immunity from suit for damages, not just from an ultimate

13

assessment of damages.

14

526 (1985).

Judicial immunity is an

See Mitchell v. Forsyth, 472 U.S. 511,

15

A state prosecuting attorney enjoys absolute immunity from

16

liability under 42 U.S.C. § 1983 for his conduct in "pursuing a

17

criminal prosecution" insofar as he acts within his role as an

18

"advocate for the State" and his actions are "intimately

19

associated with the judicial phase of the criminal process."

20

Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).

21

are entitled only to qualified immunity when they perform

22

investigatory or administrative functions, or are essentially

23

functioning as police officers or detectives.

24

Fitzsimmons, 509 U.S. 259, 273 (1993).

25

But prosecutors

Buckley v.

A public defender does not act under color of state law, an

26

essential element of an action under 42 U.S.C. § 1983, when

27

performing a lawyer’s traditional functions, such as entering

28

pleas, making motions, objecting at trial, cross-examining
3

1

witnesses, and making closing arguments.

2

454 U.S. 312, 318-19 (1981). It matters not that the public

3

defender failed to exercise independent judgment or that he was

4

employed by a public agency; it is the nature and context of the

5

function performed by the public defender that is determinative

6

under Polk County.

7

465, 468 (9th Cir. 2003).

8
9

Miranda v. Clark County, Nevada, 319 F.3d

Action under color of state law can be found if a plaintiff
can plead and prove facts which show that the public defender

10

conspired with state officials.

11
United States District Court
Northern District of California

Polk County v. Dodson,

914, 919-20 (1984).

See Tower v. Glover, 467 U.S.

12

Plaintiff names as defendants a superior court judge,

13

several district attorneys and public defenders and alleges that

14

they are corrupt and are engaged in a conspiracy to prosecute him

15

and others due to their race.

16

dismissed with leave to amend for Plaintiff to address Younger

17

abstention and immunity as discussed above.

18

The original complaint was

The amended complaint is approximately 150 handwritten pages

19

and discussed many topics including a conspiracy of the judges,

20

district attorneys, and public defenders to prosecute African

21

American defendants. Plaintiff has failed, pursuant to Fed. R.

22

Civ. P. 8(a)(2), to provide “a short and plain statement of the

23

claim showing that the pleader is entitled to relief....”

24

requires “sufficient allegations to put defendants fairly on

25

notice of the claims against them.”

26

795, 798 (9th Cir.1991)).

27

L.P., 52 F.3d 640, 645 (7th Cir.1995) (amended complaint with

28

vague and scanty allegations fails to satisfy the notice

Rule 8

McKeever v. Block, 932 F.2d

Accord Richmond v. Nationwide Cassel

4

1

requirement of Rule 8.)

2

to comply with Rule 8 does not depend on whether the complaint is

3

wholly without merit,” McHenry v. Renne, 84 F.3d 1172, 1179 (9th

4

Cir.1996).

5

“unfair burdens” imposed by complaints, “prolix in evidentiary

6

detail, yet without simplicity, conciseness and clarity” which

7

“fail to perform the essential functions of a complaint.”

8

McHenry, 84 F.3d at 1179–80.

9

“The propriety of dismissal for failure

Plaintiff’s complaint in this action illustrates the

The amended complaint is dismissed with leave to amend to
present a more concise set of allegations and facts.

11
United States District Court
Northern District of California

10

amended complaint must be no longer than 40 pages including

12

exhibits.

13

A second

Plaintiff should be clear about the relief he seeks and he

14

is informed that the Court cannot initiate a criminal prosecution

15

of defendants.

16
17
18
19

III
For the foregoing reasons, the Court hereby orders as
follows:
1.

Plaintiff’s Amended Complaint is DISMISSED WITH LEAVE TO

20

FILE A SECOND AMENDED COMPLAINT, within twenty-eight days

21

containing all related claims against all Defendants that

22

Plaintiff wishes to proceed against in this action.

23

must state clearly how each and every Defendant is alleged to

24

have violated Plaintiff’s federally-protected rights.

25

844 F.2d at 634.

26

case number used in this order and the words COURT ORDERED SECOND

27

AMENDED COMPLAINT on the first page.

28

Complaint must be no longer than 40 pages including exhibits.

The pleading

See Leer,

The pleading must include the caption and civil

5

The Second Amended

1

Plaintiff is advised that he must file all of his claims in one

2

complaint and not present them piecemeal to the Court in various

3

letters and other documents.

4

Amended Complaint within twenty-eight days of this order will

5

result in the dismissal of this action.

Failure to file a proper Second

6

2. Plaintiff is advised that the Second Amended Complaint

7

will supersede the original Complaint and all other pleadings.

8

Claims and defendants not included in the First Amended Complaint

9

will not be considered by the Court.

See Lacey v. Maricopa

County, 693 F.3d 896 (9th Cir. 2012) (en banc) ("For claims

11
United States District Court
Northern District of California

10

dismissed with prejudice and without leave to amend, we will not

12

require that they be repled in a subsequent amended complaint to

13

preserve them for appeal. But for any claims voluntarily

14

dismissed, we will consider those claims to be waived if not

15

repled.").

16

3. It is Plaintiff’s responsibility to prosecute this

17

action.

18

address by filing a separate paper with the Clerk headed “Notice

19

of Change of Address,” and must comply with the Court’s orders in

20

a timely fashion.

21

of this action for failure to prosecute pursuant to Federal Rule

22

of Civil Procedure 41(b).

23
24

Plaintiff must keep the Court informed of any change of

Failure to do so may result in the dismissal

IT IS SO ORDERED.
Dated: 6/15/2016

25

________________________
THELTON E. HENDERSON
United States District Judge

26
27

G:\PRO-SE\TEH\CR.16\McCullom0899.dwlta2.docx

28
6