Lee v. The Arresting Officer of the San Diego Police Dept. et al

Filing 2

ORDER OF DISMISSAL. This action is dismissed without prejudice but without leave to amend. Signed by Judge Larry Alan Burns on 4/9/12.(All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANTHONY BERNARD LEE,

CASE NO. 10cv2178

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Plaintiff,
vs.
THE ARRESTING OFFICER OF SAN
DIEGO POLICE DEPT., et al.,

ORDER OF DISMISSAL

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Defendant.

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Plaintiff Anthony Lee, who appears to be a prisoner in state custody, filed his

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pleading, styled as a petition for writ of coram nobis, without paying a filing fee or submitting

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an application to proceed in forma pauperis.

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The petition claims a San Diego police officer, identified in the body of the pleading

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as John Carroll, illegally arrested Lee and searched his vehicle on September 5, 2007. The

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complaint says Carroll had no legitimate reason to arrest Lee, but did so purely out of racial

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animus. The allegations make clear the arrest led to Lee’s prosecution, although they don’t

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say whether he is now in prison for that crime, as opposed to some other crime. The

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allegations are conclusory, rather than factual.

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Besides the fact that Lee didn’t pay the filing fee and doesn’t seek to proceed in forma

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pauperis, the complaint isn’t a petition for writ of coram nobis. Based on the relief sought,

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it appears to be some combination of a petition for writ of habeas corpus (because he seeks

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“remedial measures to restore [his] rights”) and claims for relief under 42 U.S.C. § 1983

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(because he seeks equitable relief preventing future arrests and searches, as well as $7

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million in damages for violating his rights and causing him to be imprisoned).

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The petition does not give any basis for the Court’s exercise of jurisdiction, and

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various jurisdictional problems or procedural bars are evident. For example, Lee asks the

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Court to declare the state judgment against him invalid. If he is seeking to attack some

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judgment other than the one for which he is in prison, e.g., a civil judgment, this claim runs

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afoul of Rooker-Feldman. See, e.g., Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.

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280, 284 (2005) (the Rooker-Feldman doctrine bars de facto appeals of state court

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judgments). If it is a criminal conviction, the writ of coram nobis is not available at all,

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because federal coram nobis is not available for state convictions. Henslev v. Municipal

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Court, 453 F.2d 1252, 1252 n.2 (9th Cir. 1972), rev'd on other grounds, Hensley v. Municipal

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Court, 411 U.S. 345 (1973) (“We are unable to treat this petition as one seeking coram nobis

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relief because Hensley seeks to challenge a state court proceeding in federal court. Coram

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nobis lies only to challenge errors occurring in the same court.”)

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Lee asks the Court to enjoin some kind of ongoing investigation or prosecution. Even

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if the Court were to accept Lee’s conclusory allegations as true, the Court has no basis for

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enjoining any criminal investigation against him, and enjoining a criminal prosecution would

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be forbidden by the Anti-Injunction Act of 1793. His request that the Court issue an injunction

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barring San Diego police from arresting him is either moot or unripe, bearing in mind that he

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is currently in prison in Sacramento.

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The petition makes clear Lee has only sought relief in this Court. Therefore if he is

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seeking to collaterally attack the conviction for which he is currently in prison,1 his claim is

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barred by AEDPA’s exhaustion requirements.

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Finally, Lee has taken no steps to serve Defendants or prosecute this action.

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Ordinarily the Court would issue an order requiring him to either pay the filing fee of $350 or

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submit a motion to proceed in forma pauperis. If he paid the fee, the Court would then

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The petition, which is short on detail, doesn’t say or imply this, but it also doesn’t rule
out the possibility either.
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require him to show cause why the action should not be dismissed for failure to serve and

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for failure to prosecute. But in this case, it is apparent his claims cannot succeed even if he

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were given leave to amend.

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This action is therefore DISMISSED WITHOUT PREJUDICE BUT WITHOUT LEAVE
TO AMEND.
IT IS SO ORDERED.
DATED: April 9, 2012

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HONORABLE LARRY ALAN BURNS
United States District Judge

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