Reviere v. Fleming et al

Filing 5

ORDER SUA SPONTE DISMISSING CASE. Pla's First Amended Complaint is dismissed w/o prejudice both for failing to state a claim upon which relief may be granted and for seeking damages against dfts who are immune pursuant to 28 USC 1915(e)(2)(b) a nd 1915A(b). Because Court finds amendment of Pla's 1983 claims would be futile at this time, leave to amend is denied. Court certifies that any IFP appeal from this Order would not be taken in good faith pursuant to 28 USC 1915(a)(3). Clerk shall close the file. (All non-registered users served via U.S. Mail Service)(jah) (av1).

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
RAYMOND KEITH REVIERE , CDCR #J-10293, Plaintiff, vs. LESLIE B. FLEMING, et al., Defendants. Civil No. 09-2086 IEG (CAB)

ORDER SUA SPONTE DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM AND FOR SEEKING MONETARY DAMAGES AGAINST IMMUNE DEFENDANTS PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A

I.

PROCEDURAL HISTORY On September 23, 2009, Raymond Keith Reviere ("Plaintiff"), a state inmate currently

incarcerated in Kern Valley State Prison located in Delano, California and proceeding pro se, filed a civil rights action filed pursuant to 42 U.S.C. § 1983. In addition, Plaintiff filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. The Court granted Plaintiff's Motion to Proceed IFP and sua sponte dismissed his Complaint for failing to state a claim, as well as seeking monetary damages against immune Defendants. See Oct. 7, 2009 Order at 6-7. On October 26, 2009, Plaintiff filed his First Amended Complaint ("FAC"). /// ///
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II.

SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) The PLRA also obligates the Court to review complaints filed by all persons proceeding

IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 112627 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 1915A). "[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). In addition, the Court's duty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a pro se civil rights complaint, the court may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id. Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on

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other grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). A. Heck Bar

In his First Amended Complaint, Plaintiff alleges that "at issue" in this action is his "right to be free of an on-going conspiracy to defeat his attempt to vacate a guilty plea" stemming from his 1993 criminal trial. FAC at 5. Plaintiff seeks a "determination of the propriety of the trial court's denial of his attempt to vacate the guilty plea." Id. However, as the Court previously informed Plaintiff, these claims amount to an attack on the constitutional validity of Plaintiff's criminal proceeding, and as such, may not be maintained pursuant to 42 U.S.C. § 1983 unless and until he can show that his criminal conviction has already been invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). "In any § 1983 action, the first question is whether § 1983 is the appropriate avenue to remedy the alleged wrong." Haygood v. Younger, 769 F.2d 1350, 1353 (9th Cir. 1985) (en banc). A prisoner in state custody simply may not use a § 1983 civil rights action to challenge the "fact or duration of his confinement." Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). The prisoner must seek federal habeas corpus relief instead. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (quoting Preiser, 411 U.S. at 489). Thus, Plaintiff's § 1983 action "is barred (absent prior invalidation)--no matter the relief sought (damages or equitable relief), no matter the target of his suit (state conduct leading to conviction or internal prison proceedings)--if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Wilkinson, 544 U.S. at 82. In this case, Plaintiff's claims "necessarily imply the invalidity" of his criminal conviction. Heck, 512 U.S. at 487. In creating the favorable termination rule in Heck, the Supreme Court relied on "the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments." Heck, 511 U.S. at 486. This is precisely what Plaintiff attempts to accomplish here. Therefore, to satisfy Heck's "favorable termination" rule, Plaintiff must first allege facts which show that the conviction which forms the basis of his § 1983 Complaint has already been: (1) reversed on direct appeal; (2) expunged
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by executive order; (3) declared invalid by a state tribunal authorized to make such a determination; or (4) called into question by the grant of a writ of habeas corpus. Heck, 512 U.S. at 487 (emphasis added); see also Butterfield v. Bail, 120 F.3d 1023, 1025 (9th Cir. 1997). Plaintiff's First Amended Complaint, like his original Complaint, alleges no facts sufficient to satisfy Heck. Thus, a suit for money damages based on his criminal conviction is not yet cognizable. Accordingly, because Plaintiff seeks damages for allegedly unconstitutional criminal proceedings, and because he has not shown that his conviction has been invalidated, either by way of direct appeal, state habeas or pursuant to 28 U.S.C. § 2254, a section 1983 claim for damages cannot be maintained, see Heck, 512 U.S. at 489-90, and his First Amended Complaint must be dismissed without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (finding that an action barred by Heck has not yet accrued and thus, must be dismissed without prejudice so that the plaintiff may reassert his § 1983 claims if he ever succeeds in invalidating the underlying conviction or sentence); accord Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997). B. Absolute Immunity

Plaintiff's claims against Deputy District Attorneys Leslie Fleming and Cameron Page must be dismissed for seeking monetary damages against immune defendants. Criminal prosecutors are absolutely immune from civil damages suits premised upon acts committed within the scope of their official duties which are "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976); see also Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993); Burns v. Reed, 500 U.S. 478, 487-93 (1991). A prosecutor is immune even when the prosecutor's malicious or dishonest action deprived the defendant of his or her liberty. Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). In addition, to the extent Plaintiff seeks damages under § 1983 against California Appellate Court Justices Ramirez, Ward and Hollenhorst, as well as California Superior Court Judge Dest , they are also entitled to absolute judicial immunity. See Stump v. Sparkman, 435 U.S. 349, 359 (1978) (noting the longstanding rule that "[a] judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of
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grave procedural errors."); Ashelman, 793 F.2d at 1075 ("Judges and those performing judgelike functions are absolutely immune from damage liability for acts performed in their official capacities."). Thus, Plaintiff's claims against Defendants Page, Dest, Fleming, Ramirez, Ward and Hollenhorst are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) for seeking monetary relief against defendants who are immune from such relief. To the extent that Plaintiff is seeking declaratory relief in the form of a new trial or release from prison, the Court cannot consider these claims for relief in this action. See Preiser, 411 U.S. at 488-500 (challenges to the fact or duration of confinement are appropriately brought by petition for a writ of habeas corpus, but challenges to conditions of confinement are appropriately brought pursuant to § 1983). The Court will not convert the present action into a habeas petition due to the implications of the abuse of the writ doctrine. See Blueford, 108 F.3d at 255 (holding that district court should not treat defective section 1983 action seeking restoration of custody credits as a habeas petition). The Court finds that Plaintiff's First Amended Complaint must be dismissed sua sponte for seeking monetary damages against immune defendants and for failing to state a claim upon which relief could be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B). See Lopez, 203 F.3d at 1126-27. IV. CONCLUSION AND ORDER Good cause appearing therefor, IT IS HEREBY ORDERED that: (1) Plaintiff's First Amended Complaint is DISMISSED without prejudice both for

failing to state a claim upon which relief may be granted and for seeking damages against defendants who are immune pursuant to 28 U.S.C. § 1915(e)(2)(b) and § 1915A(b). Moreover, because the Court finds amendment of Plaintiff's § 1983 claims would be futile at this time, leave to amend is DENIED. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 339 (9th Cir. 1996) (denial of a leave to amend is not an abuse of discretion where further amendment would be futile); see also Robinson v. California Bd. of Prison Terms, 997 F. Supp. 1303, 1308 (C.D.
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Cal. 1998) ("Since plaintiff has not, and cannot, state a claim containing an arguable basis in law, this action should be dismissed without leave to amend; any amendment would be futile.") (citing Newland v. Dalton, 81 F.3d 904, 907 (9th Cir. 1996)). (2) Further, this Court CERTIFIES that any IFP appeal from this Order would not

be taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous). The Clerk shall close the file.

IT IS SO ORDERED.

DATED: October 30, 2009

IRMA E. GONZALEZ, Chief Judge United States District Court

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