Simmons

Filing 21

ORDER EXTENDING TIME TO FILE AMENDED PLEADING. Signed by Judge Claudia Wilken on 2/7/08. (scc, COURT STAFF) (Filed on 2/7/2008)

Simmons

Doc. 21

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In re ROB J. SIMMONS. No. C 07-01205 CW / ORDER EXTENDING TIME TO FILE AMENDED PLEADING IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

On February 28, 2007, this case was opened when Plaintiff sent a letter to this Court while housed in the San Mateo County Jail. On November 13, 2007, the Court construed Plaintiff's letter as a civil rights complaint and issued an Order Granting In Forma Pauperis Status Under 28 U.S.C. § 1915, Dismissing Complaint with Leave to Amend and Addressing Pending Motions (Docket # 13). In

the November 13, 2007 Order, the Court noted that, in his letter, Plaintiff claimed that a San Mateo judge improperly found that Plaintiff was incompetent to stand trial because the judge did not believe that Plaintiff was a member of the ministry of Cannabis and Rastari Inc. or that he had founded the Tree of Life Church. Plaintiff alleged that his religious rights had been violated and that he had been incarcerated since July 17, 2006 without being convicted of a crime. In the November 13, 2007 Order, the Court noted that Plaintiff had not filed a complaint on the Court's civil rights form and that this would greatly assist the Court in clarifying the issues

Dockets.Justia.com

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Plaintiff presented.

The Court dismissed the complaint with leave

to file an amended complaint using the Court's civil rights form. The Clerk of the Court sent Plaintiff a blank civil rights form along with a copy of the Order. Subsequently, Plaintiff filed three separate letters, apparently in response to the November 13, 2007 Order. On December 10, 2007, Plaintiff filed the first letter which he indicates is a habeas action. He alleges that, on November 24,

2007, he was driving in Santa Barbara when he almost ran out of gas. He was in possession of his church's "sacramental ganja."

Plaintiff asked a University of California at Santa Barbara (UCSB) police officer for directions to a gas station. Plaintiff if he was on probation. The officer asked

Plaintiff answered that he was. Plaintiff

The officer then searched Plaintiff and arrested him.

was prosecuted for possession of marijuana for sale and transportation of marijuana for sale. Plaintiff told the UCSB

police to call his doctor because he has a prescription for marijuana, but the police refused to do so. Plaintiff claims that

he was wrongfully arrested and that he has been "jailed, harassed, abused, tortured, kidnaped and robbed." He wants an injunction to

protect members of the Tree of Life Church from wrongful arrest and prosecution and he wants $200 million in damages. On the last page

of the letter, Plaintiff alleges that Santa Barbara County Deputy Sheriff A. Kirsch improperly put Plaintiff into seclusion and isolation. On December 26, 2007, Plaintiff filed his second letter in which he alleges that he is suing the San Mateo County Probation 2

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Department for holding him in violation of the First Amendment of the United States Constitution and federal statutes. Plaintiff

alleges that he was wrongfully sent to Napa State Hospital and is suing Mark Owens and Rafael Amezaga, Jr., the deputy public defenders who represented him and who, against his wishes, filed a motion alleging that he might be incompetent. Plaintiff also

alleges that, while he was out of jail on his own recognizance (OR), he was remanded back to jail because he had a "dirty pee test for marijuana." He indicates that he wishes this case to be He also

"applied" to another case pending in Santa Barbara.

indicates that he is suing Judge Joseph Lodge and Dan Lieberman, an aide to State Senator Dr. Leland Yee, but doesn't state how these individuals violated his constitutional rights. On January 4, 2008, Plaintiff filed a third letter in which he indicates that he is "requesting a habeas action" because UCSB police stole money from him, illegally impounded his car and illegally seized his "sacramental and medicinal marijuana." requests an injunction for Multi-denominational Ministry of Cannabis and Rastafari Inc. and Tree of Life Church members because Defendants have repeatedly interfered with the church's ministry and members' freedom of religion. He requests "protection from He

arrest, persecution, incarceration and theft of sacrament, amnesty from sales, possession, transportation, growing, etc. to our sick patients and church members." LEGAL STANDARD Dismissal under 28 U.S.C. § 1915(d) for frivolousness prior to service is appropriate where no legal interest is implicated, i.e., 3

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where a claim is premised on an indisputably meritless legal theory or is clearly lacking any factual basis. Neitzke v. Williams, 490

U.S. 319, 327 (1989); Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). DISCUSSION Plaintiff apparently wants to sue state officials in Santa Barbara for violating his civil rights. He also claims his

constitutional rights were violated when he was found incompetent to stand trial and held in a state psychiatric hospital. I. Civil Rights Claims Title 42 U.S.C. § 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v.

Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive

rights, but merely provides a method for vindicating federal rights elsewhere conferred. (1989). Graham v. Connor, 490 U.S. 386, 393-94

To state a claim under § 1983, a plaintiff must allege two

essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda

County, 811 F.2d 1243, 1245 (9th Cir. 1987). Liability may be imposed on an individual defendant under section 1983 if the plaintiff can show that the defendant proximately caused the deprivation of a federally protected right. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City 4

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of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981).

A person

deprives another of a constitutional right within the meaning of section 1983 if he does an affirmative act, participates in another's affirmative act or omits to perform an act which he is legally required to do, that causes the deprivation of which the plaintiff complains. Leer, 844 F.2d at 633; see, e.g., Robins v.

Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995) (prison official's failure to intervene to prevent Eighth Amendment violation may be basis for liability). Although the federal rules require brevity

in pleading, a complaint must be sufficient to give the defendants "fair notice" of the claim and the "grounds upon which it rests." Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). II. Heck v. Humphrey Requirement In order to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. 477, 486-487 (1994). Heck v. Humphrey, 512 U.S.

A claim for damages bearing that relationship

to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Id. at 487. Heck v. Humphrey applies to Huftile v.

detainees under an involuntary civil commitment.

Miccio-Fonseca, 410 F.3d 1136, 1139-40 (9th Cir. 2005). 5

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III. Habeas Petitions A district court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." (1975). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a district court may grant a petition challenging a state conviction or commitment on the basis of a claim that was "adjudicated on the merits" in state court only if the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d). 28 U.S.C. 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21

The AEDPA requires a district court to presume correct

any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Individuals in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they 6

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seek to raise in federal court.

28 U.S.C. § 2254(b), (c); Rose v. The State's highest court must

Lundy, 455 U.S. 509, 515-16 (1982).

be given an opportunity to rule on the claims even if review is discretionary. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

Plaintiff's three letters, which the Court assumes are his attempts to file a first amended complaint, are not a proper response to the Court's order. Santa Barbara are not relevant. Plaintiff's letters about events in Santa Barbara is in the Central

District of California and any action related to occurrences in Santa Barbara must be brought in the Central District of California. If Plaintiff wishes to file a civil rights complaint about the events in San Mateo or Napa County, he must file a complaint on the civil rights complaint form the Clerk of the Court will send him with this order. In the caption of the complaint, Plaintiff must In the body of the

list each individual he wishes to sue.

complaint, Plaintiff must specifically state the actions of each individual Defendant who violated Plaintiff's civil rights. Plaintiff must also indicate which constitutional right was violated by the actions of each Defendant. Plaintiff is advised to

write separate paragraphs for each Defendant indicating in each paragraph that individual's actions and which constitutional rights he or she violated. Plaintiff is cautioned that under Heck v. Humphrey, discussed above, the Court lacks jurisdiction over any civil rights complaint that would render his incompetence commitment invalid until the commitment has been reversed on appeal or vacated pursuant to a 7

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petition for writ of habeas corpus. explain that in his complaint.

If this was done, he must

If Plaintiff is able to file a civil rights complaint in this Court that complies with this order, he must do so within thirty days of the date of this order. If he does not do so within this

time, his complaint will be dismissed for failure to prosecute. The Clerk of the Court shall send Plaintiff a blank civil rights form along with a copy of this order.

IT IS SO ORDERED.

Dated: 2/7/08

________________________ CLAUDIA WILKEN United States District Judge

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rob J. Simmons 697962 4436 Callereal Santa Barbara, CA 93110 Dated: February 7, 2008 IN RE: ROB J SIMMONS,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Case Number: CV07-01205 CW CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on February 7, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

(with prisoner civil right complaint form)

Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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