McCaw v. Fox et al

Filing 5

ORDER of Dismissal. Signed by Judge Edward M. Chen on 9/15/2016. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 9/15/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 Plaintiff, 8 9 Case No. 16-cv-02288-EMC MICHAEL GARRETT MCCAW, ORDER OF DISMISSAL v. Docket No. 1 MAUREEN L. FOX, et al., 11 Defendants. 12 For the Northern District of California United States District Court 10 I. 13 14 INTRODUCTION Michael Mr. McCaw, a prisoner at the Centinela State Prison in Imperial, California, filed 15 a pro se civil rights complaint seeking relief under 42 U.S.C. §§ 1983, 1985(2), and 1986. The 16 complaint is now before the Court for review under 28 U.S.C. § 1915A. II. 17 18 BACKGROUND The complaint in this action concerns Mr. McCaw’s criminal case and conviction in Los 19 Angeles County Superior Court, and appeal therefrom. The case is still pending on appeal in the 20 California Supreme Court. 21 Claims are asserted against two defendants. The first defendant is Maureen Fox, who is 22 Mr. McCaw’s appointed appellate attorney and allegedly lives and works in Los Gatos. Docket 23 No. 1 at 8. Ms. Fox allegedly did not do many things Mr. McCaw wanted her to do on appeal and 24 in a habeas action to challenge his conviction. Her failure to pursue certain theories in his case 25 allegedly supports relief under the second clause of 42 U.S.C. § 1985(2), which provides a cause 26 of action for conspiracy to obstruct justice in the state courts “with intent to deny to any citizen the 27 equal protection of the laws.” 42 U.S.C. § 1985(2). Mr. McCaw also alleges conclusorily that 28 Ms. Fox was part of a conspiracy to deprive him of justice in his criminal case. 1 The second defendant is the County of Los Angeles, which is sued “for several reasons” action against one who, having the power to do so, fails to prevent the commission of a wrong 4 mentioned in 42 U.S.C. § 1985). The County of Los Angeles employed deputy clerk Belcher, 5 who “den[ied] Mr. McCaw the right to fire Maureen Fox.” Id. By returning filings from Mr. 6 McCaw in which Mr. McCaw was trying to fire Ms. Fox, Belcher showed “deliberate indifference 7 to a conspiracy and/or involvement in the conspiracy.” Id. “The County of Los Angeles allowing 8 court clerks to deny prisoners constitutional rights without reason or authority is a custom & 9 practice & policy that has been in place for years” and was followed in his case. Id. (error in 10 source). The County also allegedly is liable because it contracts with the California Appellate 11 Project, an organization to which Mr. McCaw sent copies of all his documents complaining about 12 For the Northern District of California under 42 U.S.C. § 1985(2) and § 1986. Docket No. 1 at 11. (Section 1986 provides a cause of 3 United States District Court 2 Ms. Fox. “This means the C.A.P. knew the case was fabricated & that a conspiracy was going on 13 & Mrs. Fox was involved in it & they did nothing about it.” Id. 14 Mr. McCaw’s complaint seeks damage from both defendants, as well as “injunctive relief 15 barring Mrs. Fox from representing [Mr. McCaw] anymore.” 12. Damages are sought 16 because the defendants have “caused [Mr. McCaw’s” lifestyle to unfairly be degraded” apparently 17 due to his incarceration and the pendency of the criminal case. Id. 18 The California courts website (i.e., has the following 19 information about the progress of Mr. McCaw’s case: Recently, the California Court of Appeal 20 issued its opinion affirming in part, reversing in part, and remanding the case “for a jury trial on 21 the truth of the prior conviction allegations, unless defendant admits the allegations or waives the 22 right to a jury trial.” People v. McCaw, Cal. Ct. App. Case No. B266497, slip op. at 19 (Cal. Ct. 23 App. July 12, 2016). Even more recently, on August 16, 2016, Mr. McCaw filed a petition for 24 review in the California Supreme Court, and that petition is pending in People v. McCaw, Cal. S. 25 Ct. No. S236618. 26 27 28 III. DISCUSSION A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 2 1 U.S.C. § 1915A(a). In its review the Court must identify any cognizable claims, and dismiss any 2 claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or 3 seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b). 4 Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 5 696, 699 (9th Cir. 1990). 6 Mr. McCaw’s civil rights complaint is barred by the Heck rule. Heck v. Humphrey, 512 7 U.S. 477 (1994), held that a plaintiff cannot bring a civil rights action for damages for a wrongful 8 conviction or imprisonment, or for other harm caused by actions whose unlawfulness would 9 render a conviction or sentence invalid, unless that conviction or sentence already has been wrongful by, for example, being reversed on appeal or being set aside when a state or federal court 12 For the Northern District of California determined to be wrongful. See id. at 486-87. A conviction or sentence may be determined to be 11 United States District Court 10 issues a writ of habeas corpus. See id. The Heck rule also prevents a person from bringing an 13 action that -- even if it does not directly challenge the conviction -- would imply that the 14 conviction was invalid. The practical importance of this rule is that a plaintiff cannot attack his 15 conviction in a civil rights action for damages; the decision must have been successfully attacked 16 before the civil rights action for damages is filed. The Heck rule was first announced with respect 17 to an action for damages, but the Supreme Court has since applied the rule to actions that sought 18 equitable relief as well as damages. If success in the § 1983 action would “necessarily 19 demonstrate the invalidity of confinement or its duration,” the § 1983 action is barred no matter 20 the relief sought (i.e., damages or equitable relief) as long as the conviction has not been set aside. 21 See Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). “Heck applies equally to claims brought under 22 §§ 1983, 1985 and 1986.” McQuillion v. Schwarzenegger, 369 F.3d 1091, 1098 n. 4 (9th 23 Cir.2004). 24 The Heck rule bars Mr. McCaw’s claims against appointed appellate counsel Ms. Fox 25 because success on those claims would call into question the validity of Plaintiff s state court 26 judgment. See generally Smith v. Robbins, 528 U.S. 259, 285 (2000) (ineffective assistance of 27 appellate counsel claim requires showing of deficient performance and prejudice, i.e., but for 28 counsel’s failure “he would have prevailed on his appeal”). The Heck rule also bars Mr. McCaw’s 3 1 claims against the County of Los Angeles because success on those claims would call into 2 question the validity of his conviction; Mr. McCaw alleged that the court clerk was acting as part 3 of a conspiracy to “frame” him and “obstruct the due course of justice” in his criminal case and 4 appeal and interfered with his efforts to fire his appointed appellate attorney. See Docket No. 1 at 5 7, 11-12. 6 Even if the Heck rule did not extend to the injunctive relief request portion of Mr. 7 McCaw’s complaint -- i.e., his request for an injunction barring Ms. Fox from representing him -- 8 dismissal would be required under the Younger abstention doctrine. Under principles of comity 9 and federalism, a federal court should not interfere with ongoing state criminal proceedings by Harris, 401 U.S. 37, 43-54 (1971). The rationale of Younger applies throughout appellate 12 For the Northern District of California granting injunctive or declaratory relief absent extraordinary circumstances. See Younger v. 11 United States District Court 10 proceedings, requiring that state appellate review of a state court judgment be exhausted before 13 federal court intervention is permitted. See Dubinka v. Judges of the Superior Court, 23 F.3d 218, 14 223 (9th Cir. 1994) (even if criminal trials were completed at time of abstention decision, state 15 court proceedings still considered pending). Requests for declaratory relief that would interfere 16 with ongoing state criminal proceedings are subject to the same restrictions that govern requests 17 for injunctive relief. See Samuels v. Mackell, 401 U.S. 66, 71–74 (1971); Perez v. Ledesma, 401 18 U.S. 82, 86 n. 2 (1971). Mr. McCaw has a petition for review pending in the California Supreme 19 Court and, per the California Court of Appeal’s decision, must return to superior court for further 20 proceedings on the part of his case that was remanded. To grant Mr. McCaw’s request for 21 injunctive relief barring the appellate attorney from representing him plainly would interfere with 22 the state court criminal action now pending. Younger abstention is warranted. See Kelly v. 23 Robinson, 479 U.S. 36, 49 (1986) (“the States’ interest in administering their criminal justice 24 systems free from federal interference is one of the most powerful of the considerations that 25 should influence a court considering equitable types of relief”) (citing Younger, 401 U.S. at 44– 26 45); see also Juidice v. Vail, 430 U.S. 327, 348 (1977) (where a district court finds Younger 27 abstention appropriate, the court may not retain jurisdiction and should dismiss the action). 28 4 1 If Mr. McCaw wants to challenge the lawfulness of his current custody, the exclusive 2 method by which he may do so in federal court is by filing a petition for writ of habeas corpus. 3 See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). The proper venue for a habeas petition 4 challenging a conviction from the Los Angeles County Superior Court is the United States District 5 Court for the Central District of California. IV. 6 7 CONCLUSION For the foregoing reasons, this action is dismissed. The dismissal is without prejudice to 8 Mr. McCaw filing a new action for damages if his state court conviction is overturned or set aside. 9 The Clerk shall close the file. 10 IT IS SO ORDERED. 12 For the Northern District of California United States District Court 11 13 14 15 Dated: September 15, 2016 ______________________________________ EDWARD M. CHEN United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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