Shove-v-Brown et al

Filing 78

ORDER OF DISMISSAL. Signed by Judge Ronald M. Whyte on 11/27/13. (jgS, COURT STAFF) (Filed on 11/27/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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THEODORE SHOVE,
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Plaintiff,
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v.
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EDMUND G. BROWN, et al.,
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Defendants.
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No. C 12-0211 RMW (PR)
ORDER OF DISMISSAL

Plaintiff, an inmate on death row at San Quentin State Prison, filed this pro se prisoner’s

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civil rights action under 42 U.S.C. § 1983 complaining about various problems, including

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California’s slow process for reviewing capital convictions and sentences. The court dismissed

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this action pursuant to 28 U.S.C. § 1915(g). Thereafter, the Ninth Circuit reversed and remanded

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the case. As a result, this court re-opened plaintiff’s action and screened plaintiff’s complaint.

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The court identified various deficiencies in plaintiff’s complaint and dismissed it with leave to

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amend. Plaintiff then filed an amended complaint, which is now before the court for review.

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DISCUSSION
A.

Standard of Review
A federal court must engage in a preliminary screening of any case in which a prisoner

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

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See 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 may be

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granted, or seek monetary relief from a defendant who is immune from such relief. See id. at §

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1915A(b). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep’t,

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901 F.2d 696, 699 (9th Cir. 1990).

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B.

Plaintiff’s Claims

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The amended complaint failed to correct most of the deficiencies about which the court

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previously warned plaintiff. First, plaintiff ignored the instruction to link each defendant to his

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legal claim(s). The amended complaint simply lists numerous defendants at the outset and

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makes no effort to connect any particular defendant to a claim for relief. This is no small matter,

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as the amended complaint has thousands of defendants, all sued in their individual and official

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capacities: three Governors of the State of California; all the current and three former Justices of

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the California Supreme Court; the State of California; 50 Doe state judges; 100 Does from the

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Commission of Judicial Performance; 100 Does of the California Appellate Project; 100 Does of

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the California State Bar; all “certified attorneys” who represent capital defendants; California

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Attorney General Kamala Harris; 10,000 Does of California prosecutors; the undersigned judge;

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District Court Judge Manuel Real; and United States Attorney Eric Holder; and “ANY and ALL

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U.S. Judges Who were presented with a Complaint Raising the Issues at Bar Who Created

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ORDERS Absent of Referrals to U.S. Attorney and or U.S. Department of Justice, and/or ANY

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Corrective Forum in Compliance to Defendants of United States Constitution, Statutory Laws as

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Demanded by Invoked Duty.” (Am. Compl. at 4) (random capitalization in original).

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Second, plaintiff ignored the instruction to present specific injunctive and declaratory

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relief requests. Most of the “relief” section of the amended complaint is a tangle of legal jargon

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that could not be the basis for any injunction or declaratory relief. Notably, plaintiff does not

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request that this court order the state court to decide his appeal immediately. Even assuming

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such relief could be granted, the court will not assume that a plaintiff wants relief that he has

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chosen not to request. See Blair v. Martel, 645 F.3d 1151, 1157-58 (9th Cir. 2011) (“request for

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an order directing a state court to hasten its consideration of an appeal belongs in a § 1983

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complaint, not a habeas petition”); but cf. id. at 1158 n.3 (“We express no view on the merits of
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such a § 1983 claim or on what relief, if any, might be available if the claim were pleaded in the

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proper place and at the proper time”). It is particularly

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request where, as in the case of a death row inmate, a quick decision in state court might mean

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that he moves more rapidly toward the ultimate penalty. Without any sufficient relief requests,

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the failure to link defendants becomes an even greater problem because the court cannot

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determine the appropriate defendant(s) among the thousands mentioned without knowing what

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relief the plaintiff wants against whom.

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to assume such a relief

Third, plaintiff failed to allege a short and plain statement of each claim for relief he
wishes to assert. His amended complaint is a mishmash of ideas that fails to provide a sufficient

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description of any claim for relief or specify a constitutional right that has been violated. He

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alleges the reversal rate in the California courts is too low while the affirmance rate for capital

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cases is high. That is, the amended complaint urges that former Governor Deukmejian caused

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Rose Bird and three other justices to be removed in 1987 and replaced with different judges over

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the next several years, and that the affirmance rate in death penalty cases has increased

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dramatically. He also alleges that the state’s process for reviewing capital convictions by

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threatening state judges with removal if they do not affirm the convictions perpetrates a fraud

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upon the United States. Specifically, plaintiff states that the state officers who support this

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alleged unconstitutional process are violating federal criminal statutes. Even with liberal

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construction, these allegations do not state a claim for a violation of plaintiff’s rights to due

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process, equal protection, or access to the courts.

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Fourth, plaintiff again argues that “defendants” violated federal criminal law as well as

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other statutory law. These allegations also fail. The court previously warned plaintiff that a

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private party has no standing to prosecute a criminal action, and that in order to seek redress

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under § 1983, a plaintiff must assert the violation of a federal “right,” not merely the violation of

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federal “law.” See Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106 (1989).

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The gist of plaintiff’s amended complaint appears to be that, in California, the process for

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reviewing state capital convictions takes too long, it is almost impossible to obtain a reversal,

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and these factors demonstrate that government officials and agencies are defrauding the United
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States by creating these unconstitutional policies. However, plaintiff has not alleged any specific

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harm from the alleged delay. Moreover, plaintiff’s failure to link any defendant to his claims

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and failure to articulate any relief requested require that the amended complaint be dismissed.

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Further leave to amend will not be granted because the court already has given plaintiff

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an opportunity to correct the deficiencies in his pleading and he has been unable or unwilling to

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correct them. There is no reason to believe that, having failed to correct the deficiencies, he

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would be able to state a cognizable claim for relief on yet another try.

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Alternatively, this court should abstain from hearing this action. Under principles of
comity and federalism, a federal court should not interfere with ongoing state criminal

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proceedings by granting injunctive or declaratory relief absent extraordinary circumstances. See

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Younger v. Harris, 401 U.S. 37, 43-54 (1971). The rationale of Younger applies throughout

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appellate proceedings, requiring that state appellate review of a state court judgment be

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exhausted before federal court intervention is permitted. See Dubinka v. Judges of the Superior

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Court, 23 F.3d 218, 223 (9th Cir. 1994) (even if criminal trials were completed at time of

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abstention decision, state court proceedings still considered pending). Requests for declaratory

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relief that would interfere with ongoing state criminal proceedings are subject to the same

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restrictions that govern requests for injunctive relief. See Pulliam v. Allen, 466 U.S. 522, 539

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(1984); Samuels v. Mackell, 401 U.S. 66, 71-74 (1971).

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Younger requires that federal courts refrain from enjoining or otherwise interfering with

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ongoing state criminal proceedings where three conditions are met: (1) state judicial proceedings

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are ongoing; (2) the state proceedings implicate important state interests; and (3) the plaintiff has

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the opportunity to raise his federal constitutional concerns in the ongoing proceedings.

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Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U.S. 423, 432 (1982).

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Here, all three prongs of the abstention test are met. First, the appeal is ongoing in the

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California Supreme Court. Second, the appeal unquestionably involves important state interests.

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See Massie v. Sumner, 624 F.2d 72 (9th Cir. 1980) (acknowledging California’s interest in

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ensuring the fairness of its capital convictions through the automatic appeal process); see also

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Kelly v. Robinson, 479 U.S. 36, 49 (1986) (“the States’ interest in administering their criminal
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justice systems free from federal interference is one of the most powerful of the considerations

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that should influence a court considering equitable types of relief”) (citing Younger, 401 U.S. at

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44-45). Third, plaintiff can present his appellate delay claim to the California Supreme Court

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when it considers his appeal – California courts have previously considered appellate delay

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claims on their merits. See, e.g., People v. Holt, 15 Cal. 4th 619, 708-09 (Cal. 1997) (addressing

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claim that three-year delay in appointment of counsel for automatic appeal violated due process);

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People v. Horton, 11 Cal.4th 1068, 1141 (Cal. 1995) (addressing claim that eight-year delay in

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certification of record on appeal violated due process), as modified on denial of rehearing, 12

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Cal.4th 783.

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Even when the three-pronged test is satisfied, however, a party may avoid application of

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the abstention doctrine if he can show that he would suffer “irreparable harm” that is both “great

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and immediate” if the federal court declines jurisdiction, that there is bad faith or harassment on

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the part of the state in prosecuting him, or that the state tribunal is biased against the federal

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claim. See Middlesex, 457 U.S. at 437; Kugler v. Helfant, 421 U.S. 117, 124-25 (1975);

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Younger, 401 U.S. at 46. Here, plaintiff does not make any plausible non-conclusory allegation

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of irreparable harm, bad faith, harassment, or bias of the tribunal. See generally Younger, 401

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U.S. at 46, 53-54 (cost, anxiety and inconvenience of criminal defense is not the kind of special

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circumstance or irreparable harm that would justify federal intervention). The Younger factors

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weigh strongly against interfering with the appeal process. Younger abstention is warranted.

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See Juidice v. Vail, 430 U.S. 327, 348 (1977).

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CONCLUSION
This action is dismissed because the amended complaint fails to state a claim against any

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particular defendant and fails to comply with the court’s order to correct the deficiencies in the

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earlier pleadins. In the alternative, this action is dismissed because Younger abstention is

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warranted. The clerk shall terminate all pending motions as moot and close the file.

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IT IS SO ORDERED.
DATED:
RONALD M. WHYTE
United States District Judge

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Order of Dismissal
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

THEODORE SHOVE et al,

Case Number: CV12-00211 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
EDMUND G. BROWN et al,
Defendant.

/

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 November 27, 2013, 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.

Theodore Shove G11092
San Quentin State Prison
4EB117
San Quentin, CA 94974
Dated: November 27, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk