Scott v. Lohman

Filing 14

ORDER OF DISMISSAL WITH PREJUDICE. GRANTING MOTION for Extension of Time to Amend 12 and MOTION to Refile as Submitted 13 . Signed by Judge Phyllis J. Hamilton on 2/17/17. Certificate/Proof of Service attached. (kc, COURT STAFF) (Filed on 2/17/2017)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DANE MYRON SCOTT, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 16-cv-06977-PJH ORDER OF DISMISSAL v. Re: Dkt. Nos. 12, 13 DALE BRADFORD LOHMAN, Defendant. 12 13 14 Plaintiff, a state prisoner, filed a pro se complaint that was dismissed with leave to amend. He has filed an amended complaint. DISCUSSION 15 16 STANDARD OF REVIEW 17 Federal courts must engage in a preliminary screening of cases in which prisoners 18 seek redress from a governmental entity or officer or employee of a governmental entity. 19 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and 20 dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief 21 may be granted, or seek monetary relief from a defendant who is immune from such 22 relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v. 23 Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 24 Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement 25 of the claim showing that the pleader is entitled to relief." "Specific facts are not 26 necessary; the statement need only '"give the defendant fair notice of what the . . . . claim 27 is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) 28 (citations omitted). Although in order to state a claim a complaint “does not need detailed 1 factual allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment] 2 to relief' requires more than labels and conclusions, and a formulaic recitation of the 3 elements of a cause of action will not do. . . . Factual allegations must be enough to 4 raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 5 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state 6 a claim to relief that is plausible on its face." Id. at 570. The United States Supreme 7 Court has recently explained the “plausible on its face” standard of Twombly: “While legal 8 conclusions can provide the framework of a complaint, they must be supported by factual 9 allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” 11 United States District Court Northern District of California 10 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 13 elements: (1) that a right secured by the Constitution or laws of the United States was 14 violated, and (2) that the alleged deprivation was committed by a person acting under the 15 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 16 LEGAL CLAIMS 17 Plaintiff seeks relief regarding his criminal conviction. 18 “‘Federal law opens two main avenues to relief on complaints related to 19 imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the 20 Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges 21 to the lawfulness of confinement or to particulars affecting its duration are the province of 22 habeas corpus.’” Hill v. McDonough, 547 U.S. 573, 579 (2006) (quoting Muhammad v. 23 Close, 540 U.S. 749, 750 (2004)). “An inmate’s challenge to the circumstances of his 24 confinement, however, may be brought under § 1983.” Id. 25 The original complaint was incomprehensible and the amended complaint remains 26 quite confusing. Plaintiff states that he does not wish to proceed pursuant to either 27 § 2254 or § 1983. He argues that all judges, prosecutors, attorneys and clerks are 28 operating in a fiduciary trustee capacity; therefore he can pursue a contract action. He 2 1 presents no case law to support this assertion. Plaintiff was convicted on several counts of committing lewd and lascivious acts on 2 3 a child under the age of 14 and he was sentenced to 100 years to life in state prison. 4 Amended Complaint at 15; People v. Scott, H040175, 2014 WL 1597928 (Cal. Ct. App. 5 April 21, 2014); People v. Scott, No. H024429, 2004 WL 2351590, (Cal. Ct. App. Oct. 20, 6 2004). For relief in this case plaintiff seeks for his conviction to be voided because of due 7 process violations. If plaintiff seeks to challenge his conviction he must file a habeas 8 petition after exhausting his state court remedies.1 To the extent he seeks to recover damages for an allegedly unconstitutional 9 conviction or imprisonment, or for other harm caused by actions whose unlawfulness 11 United States District Court Northern District of California 10 would render a conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove 12 that the conviction or sentence has been reversed on direct appeal, expunged by 13 executive order, declared invalid by a state tribunal authorized to make such 14 determination, or called into question by a federal court's issuance of a writ of habeas 15 corpus. Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). To the extent plaintiff names the prosecuting deputy district attorney as a 16 17 defendant he is informed that a state prosecuting attorney enjoys absolute immunity from 18 liability under 42 U.S.C. § 1983 for his conduct in "pursuing a criminal prosecution" 19 insofar as he acts within his role as an "advocate for the State" and his actions are 20 "intimately associated with the judicial phase of the criminal process." Imbler v. 21 Pachtman, 424 U.S. 409, 430-31 (1976). But prosecutors are entitled only to qualified 22 immunity when they perform investigatory or administrative functions, or are essentially 23 functioning as police officers or detectives. Buckley v. Fitzsimmons, 509 U.S. 259, 273 24 (1993). 25 26 1 27 28 Court records indicate that plaintiff filed a habeas petition in this court that was denied. See Scott v. Galaza, Case No. 06-cv-2792-MMC. To proceed with a second or successive petition, plaintiff must obtain permission from the Ninth Circuit. See 28 U.S.C. § 2244(b)(3)(A). 3 Plaintif allegatio in this action are f ff’s ons a frivolous an fail to sta a claim. Because nd ate 1 2 no further amount of amendment would cure t deficien w the ncies of the complaint, this action 3 d w ve is dismissed without leav to amend. CONCLU USION 4 1. The motions fo an extension and to refile (Doc e or o cket Nos. 12, 13) are G GRANTED 5 6 and the amen nded complaint is deem timely filed and h been re med has eviewed by the court. 7 2. This action is DISMISSED with preju s D D udice as friv volous and for failure t state a to 8 9 10 United States District Court Northern District of California 11 aim. cla 3. The Clerk shall close this case. e s IT IS SO ORDER S RED. Da ated: Februa 17, 2017 ary 12 13 PH HYLLIS J. H HAMILTON N Un nited States District Ju s udge 14 15 \\can ndoak.cand.circ9 9.dcn\data\users\PJHALL\_psp\2 2016\2016_06977 7_Scott_v_Lohm man_(PSP)\16-cv v-06977-PJH-dis.docx 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 2 UNITED STATES D D DISTRICT C COURT 3 NORTHER DISTRIC OF CALI RN CT IFORNIA 4 5 DANE MYRO SCOTT, D ON , Case No. 1 16-cv-06977 7-PJH Plaintiff, 6 v. CERTIFIC CATE OF S SERVICE 7 8 DALE BRAD D DFORD LOH HMAN, Defendant. . 9 10 United States District Court Northern District of California 11 I, the un ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S. ee ice Dis strict Court, Northern Di istrict of Cal lifornia. 12 13 14 15 16 That on February 17, 2017, I SE n ERVED a tr and corre copy(ies) of the attac rue ect ) ched, by pla acing said co opy(ies) in a postage paid envelope a d addressed to the person(s hereinafte listed, by s) er dep positing said envelope in the U.S. Mail, or by pla d n M acing said co opy(ies) into an inter-off delivery o ffice y rec ceptacle loca in the Cl ated lerk's office. . 17 18 19 ane 1397 Da Myron Scott ID: T51 Correctional Tr raining Facility WA-341 1 P.O Box 705 O. Sol ledad, CA 93960 20 21 22 Da ated: Februar 17, 2017 ry 23 24 Su usan Y. Soon ng Cl lerk, United States Distr Court d rict 25 26 27 28 By y:_________ ___________ _______ K Kelly Collins, Deputy Cle to the , erk H Honorable PH HYLLIS J. H HAMILTON N 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?