Ko v. Garnette

Filing 11

ORDER OF DISMISSAL by Judge Edward M. Chen. (Attachments: # 1 Certificate/Proof of Service)(emcsec, COURT STAFF) (Filed on 4/12/2018)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LILY KO, Plaintiff, 8 ORDER OF DISMISSAL v. 9 Docket Nos. 7, 9 10 LAURA GARNETTE, Defendant. 11 United States District Court Northern District of California Case No. 17-cv-04951-EMC 12 13 Plaintiff Lily Ko, also known as Hui Lian Ke, filed this pro se civil action while she was 14 confined in the Santa Clara County Jail. Her initial pleading was entitled “affidavit: declaration to 15 withdraw consent of contract, to render null & void all contracts, transaction(s) for account 16 stylized as case [14526193]/[C1496348], and associated cases [114JD22562] & [114JD22563].” 17 Docket No. 1 (brackets in original). The Court dismissed the pleading for failure to state a claim 18 upon which relief may be granted, and allowed Plaintiff to file an amended complaint that cured 19 several pleading deficiencies. See Docket No. 6. 20 Plaintiff then filed an amended complaint. Docket No. 7. In her amended complaint, 21 Plaintiff challenges the validity of the terms of probation imposed on her in 2015 following her 22 conviction “on charge of P.C. § 664/278.” Docket No. 7 at 1.1 She alleges that the terms of 23 probation imposed on July 6, 2015 are not the terms to which she agreed -- most notably, she only 24 agreed to a one-year probation term but received a three-year probation term -- and that 25 government officials have breached the terms of her probation. See id. at 2-3. Defendant 26 allegedly is the chief of probation for Santa Clara County, and is thereby responsible “for the 27 1 28 California Penal Code § 278 makes it a crime for a noncustodial parent to detain or conceal a child from the child’s legal custodian. California Penal Code § 667 punishes criminal attempts. 1 defects & discrepancies of the Probation Contract terms that have caused [Plaintiff’s] arrest & 2 imprisonment from March 6, 2017 to date.” Id. at 1. Plaintiff does not allege that Defendant took 3 part in the arrest in 2017, and apparently believes Defendant should be liable because Defendant is 4 in charge of the department that oversees the probation term to which Plaintiff was sentenced. In 5 her prayer for relief, Plaintiff requests that her probation be vacated, that a vehicle and its contents 6 seized upon her arrest in 2017 be returned, and that she be released from custody. Id. at 5. 7 Plaintiff’s amended complaint is now before the court for review under 28 U.S.C. 8 § 1915A, which requires a federal court to engage in a preliminary screening of any case in which 9 a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. In its review the Court must identify any cognizable claims, and dismiss any claims which 11 United States District Court Northern District of California 10 are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary 12 relief from a defendant who is immune from such relief. See id. at § 1915A(b). Pro se pleadings 13 must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 14 1990). 15 Plaintiff’s civil rights complaint is barred by the Heck rule. Heck v. Humphrey, 512 U.S. 16 477 (1994), held that a plaintiff cannot bring a civil rights action for damages for a wrongful 17 conviction or imprisonment, or for other harm caused by actions whose unlawfulness would 18 render a conviction or sentence invalid, unless that conviction or sentence already has been 19 determined to be wrongful. See id. at 486-87. A conviction or sentence may be determined to be 20 wrongful by, for example, being reversed on appeal or being set aside when a state or federal court 21 issues a writ of habeas corpus. See id. The Heck rule also prevents a person from bringing an 22 action that -- even if it does not directly challenge the conviction -- would imply that the 23 conviction was invalid. The practical importance of this rule is that a plaintiff cannot attack her 24 conviction or sentence in a civil rights action for damages; the decision must have been 25 successfully attacked before the civil rights action for damages is filed. The Heck rule was first 26 announced with respect to an action for damages, but the Supreme Court has since applied the rule 27 to actions that sought equitable relief as well as damages. If success in the § 1983 action would 28 “necessarily demonstrate the invalidity of confinement or its duration,” the § 1983 action is barred 2 1 no matter the relief sought (i.e., damages or equitable relief) as long as the conviction has not been 2 set aside. See Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). 3 The Heck rule bars Plaintiff’s complaint against the chief of probation for Santa Clara 4 County because success on Plaintiff’s claims would call into question the validity of Plaintiff s 5 state court conviction and sentence imposed in 2015. That is, if Plaintiff prevailed on her 6 contention that the sentence imposed should have been a one-year probation term or that her 7 public defender did not adequately represent her in that criminal case, it would call into question 8 the validity of the three-year probation term that was imposed following her conviction. 9 If Plaintiff wants to challenge her 2015 conviction or the lawfulness of the probation imposed following that conviction, the exclusive method by which she may do so in federal court 11 United States District Court Northern District of California 10 is by filing a petition for writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 12 (1973). Plaintiff should be aware that there are rules governing habeas corpus, including a 13 requirement that claims be exhausted in state court before filing a federal habeas corpus petition. 14 See 28 U.S.C. § 2254(b)(1) (habeas petition challenging state court conviction cannot be granted if 15 petitioner has not exhausted available state court remedies); Carden v. Montana, 626 F.2d 82, 83- 16 84 & n.1 (9th Cir. 1980) (principles of federalism and comity require that federal court abstain 17 from considering habeas petition until all state criminal proceedings are completed and petitioner 18 exhausts available judicial state remedies, unless special circumstances warranting federal 19 intervention prior to a state criminal trial can be found). 20 21 22 23 For the foregoing reasons, this action is DISMISSED. The dismissal is without prejudice to Plaintiff filing an action for writ of habeas corpus to challenge her conviction and sentence. Plaintiff’s motion to reopen the action is DENIED as unnecessary. Docket No. 9. When she filed the motion, the action was still open. 24 The clerk shall close the file. 25 IT IS SO ORDERED. 26 27 28 Dated: April 12, 2018 ______________________________________ EDWARD M. CHEN United States District Judge 3

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