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)

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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

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