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)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANE MYRON SCOTT,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-06977-PJH

ORDER OF DISMISSAL

v.

Re: Dkt. Nos. 12, 13
DALE BRADFORD LOHMAN,
Defendant.

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Plaintiff, a state prisoner, filed a pro se complaint that was dismissed with leave to
amend. He has filed an amended complaint.
DISCUSSION

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STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners

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seek redress from a governmental entity or officer or employee of a governmental entity.

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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief

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may be granted, or seek monetary relief from a defendant who is immune from such

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relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v.

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Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement

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of the claim showing that the pleader is entitled to relief." "Specific facts are not

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necessary; the statement need only '"give the defendant fair notice of what the . . . . claim

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is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007)

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(citations omitted). Although in order to state a claim a complaint “does not need detailed

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factual allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment]

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to relief' requires more than labels and conclusions, and a formulaic recitation of the

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elements of a cause of action will not do. . . . Factual allegations must be enough to

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raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state

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a claim to relief that is plausible on its face." Id. at 570. The United States Supreme

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Court has recently explained the “plausible on its face” standard of Twombly: “While legal

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conclusions can provide the framework of a complaint, they must be supported by factual

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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.”

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United States District Court
Northern District of California

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Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged deprivation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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LEGAL CLAIMS

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Plaintiff seeks relief regarding his criminal conviction.

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“‘Federal law opens two main avenues to relief on complaints related to

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imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the

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Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983. Challenges

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to the lawfulness of confinement or to particulars affecting its duration are the province of

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habeas corpus.’” Hill v. McDonough, 547 U.S. 573, 579 (2006) (quoting Muhammad v.

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Close, 540 U.S. 749, 750 (2004)). “An inmate’s challenge to the circumstances of his

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confinement, however, may be brought under § 1983.” Id.

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The original complaint was incomprehensible and the amended complaint remains

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quite confusing. Plaintiff states that he does not wish to proceed pursuant to either

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§ 2254 or § 1983. He argues that all judges, prosecutors, attorneys and clerks are

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operating in a fiduciary trustee capacity; therefore he can pursue a contract action. He
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presents no case law to support this assertion.
Plaintiff was convicted on several counts of committing lewd and lascivious acts on

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a child under the age of 14 and he was sentenced to 100 years to life in state prison.

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Amended Complaint at 15; People v. Scott, H040175, 2014 WL 1597928 (Cal. Ct. App.

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April 21, 2014); People v. Scott, No. H024429, 2004 WL 2351590, (Cal. Ct. App. Oct. 20,

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2004). For relief in this case plaintiff seeks for his conviction to be voided because of due

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process violations. If plaintiff seeks to challenge his conviction he must file a habeas

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petition after exhausting his state court remedies.1
To the extent he seeks to recover damages for an allegedly unconstitutional

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conviction or imprisonment, or for other harm caused by actions whose unlawfulness

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United States District Court
Northern District of California

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would render a conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove

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that the conviction or sentence has been reversed on direct appeal, expunged by

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executive order, declared invalid by a state tribunal authorized to make such

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determination, or called into question by a federal court's issuance of a writ of habeas

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corpus. Heck v. Humphrey, 512 U.S. 477, 486-487 (1994).
To the extent plaintiff names the prosecuting deputy district attorney as a

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defendant he is informed that a state prosecuting attorney enjoys absolute immunity from

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liability under 42 U.S.C. § 1983 for his conduct in "pursuing a criminal prosecution"

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insofar as he acts within his role as an "advocate for the State" and his actions are

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"intimately associated with the judicial phase of the criminal process." Imbler v.

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Pachtman, 424 U.S. 409, 430-31 (1976). But prosecutors are entitled only to qualified

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immunity when they perform investigatory or administrative functions, or are essentially

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functioning as police officers or detectives. Buckley v. Fitzsimmons, 509 U.S. 259, 273

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(1993).

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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).
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Plaintif allegatio in this action are f
ff’s
ons
a
frivolous an fail to sta a claim. Because
nd
ate

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no further amount of amendment would cure t deficien
w
the
ncies of the complaint, this action

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d
w
ve
is dismissed without leav to amend.
CONCLU
USION

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1. The motions fo an extension and to refile (Doc
e
or
o
cket Nos. 12, 13) are G
GRANTED

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and the amen
nded complaint is deem timely filed and h been re
med
has
eviewed by the court.

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2. This action is DISMISSED with preju
s
D
D
udice as friv
volous and for failure t state a
to

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United States District Court
Northern District of California

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aim.
cla
3. The Clerk shall close this case.
e
s
IT IS SO ORDER
S
RED.
Da
ated: Februa 17, 2017
ary

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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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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

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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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DANE MYRO SCOTT,
D
ON
,

Case No. 1
16-cv-06977
7-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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DALE BRAD
D
DFORD LOH
HMAN,
Defendant.
.

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United States District Court
Northern District of California

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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.

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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.
.

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ane
1397
Da Myron Scott ID: T51
Correctional Tr
raining Facility WA-341
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P.O Box 705
O.
Sol
ledad, CA 93960

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Da
ated: Februar 17, 2017
ry

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Su
usan Y. Soon
ng
Cl
lerk, United States Distr Court
d
rict

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By
y:_________
___________
_______
K
Kelly Collins, Deputy Cle to the
,
erk
H
Honorable PH
HYLLIS J. H
HAMILTON
N
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