Udom v. State of California et al
Filing
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ORDER granting Plaintiff's 2 Motion for Leave to Proceed in Forma Pauperis. and denying 4 Motion for Recusal. Pla's Complaint is dismissed w/o prejudice pursuant to 28 USC 1915(e)(2)(b). Pla is granted 45 days from the date this Order is filed to file a First Amended Complaint. If Pla fails to file an Amended Complaint w/in 45 days, this case shall remain dismissed for failing to state a claim pursuant to 28 USC 1915(e)(2). Signed by Judge Larry Alan Burns on 4/10/2012. (Blank First Amended Complaint form t/w copy of this Order mailed to Plaintiff) (All non-registered users served via U.S. Mail Service) (jah)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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ANTHONY UDOM,
Detainee No. A023503206,
Civil No.
Plaintiff,
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vs.
(2) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2];
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ORDER:
(1) DENYING MOTION TO RECUSE
[ECF No. 4];
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12cv0458 LAB (PCL)
STATE OF CALIFORNIA; FBI;
LASD PHYSICIANS COUNTY JAIL;
LAPD; OFFICER HERNANDEZ;
CITY OF LOS ANGELES; DONOVAN
STATE PRISON DOCTOR; DEPUTY
PUBLIC DEFENDER; DEPUTY
ATTORNEY GENERAL; ATTORNEY
GENERAL, STATE OF CALIFORNIA,
AND
(3) SUA SPONTE DISMISSING
COMPLAINT FOR FAILING
TO STATE A CLAIM AND FOR
SEEKING MONEY DAMAGES
AGAINST IMMUNE DEFENDANTS
PURSUANT TO 28 U.S.C. § 1915(e)(2)
Defendants.
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Anthony Udom (“Plaintiff”), currently detained at the San Diego Correctional Facility
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located in San Diego, California, and proceeding pro se, has filed a civil action. Plaintiff has not
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prepaid the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, he has filed a Motion to
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Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [ECF No. 2]. In addition,
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Plaintiff has filed a Motion for Recusal [ECF No. 4].
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I.
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MOTION FOR RECUSAL
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Plaintiff has filed a one page document in which he seeks to have this Court recuse from
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this matter. In this Motion, Plaintiff indicates that this “request is based on the Judge
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unreasonable delay in scheduling calendar.” (See Pl.’s Mot. at 1.) Plaintiff also states, without
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any other elaboration, “conflict of interest.” (Id.) “‘In the absence of a legitimate reason to
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recuse himself, a judge has a duty to sit in judgment in all cases coming before him,’” United
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States v. Holland, 501 F.3d 1120, 1123 (9th Cir. 2007) (citing Laird v. Tatum, 409 U.S. 824, 837
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(1972)), “except those in which [his] ‘impartiality might reasonably be questioned.’” Id. (citing
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28 U.S.C. § 455(a) (“[a]ny justice, judge, or magistrate judge of the United States shall
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disqualify himself in any proceeding in which his impartiality might reasonably be
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questioned.”)). A motion to disqualify “must be evaluated on an objective basis, so that what
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matters is not the reality of bias or prejudice but its appearance.” Liteky v. United States, 510
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U.S. 540, 549 (1994).
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It is not clear to the Court the explanation behind either Plaintiff’s claim of “unreasonable
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delay” or “conflict of interest.” (Pl.’s Mot. at 1.) The matter currently before the Court had been
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pending for less than thirty (30) days at the time Plaintiff filed this Motion. Moreover, the Court
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is required to conduct a sua sponte screening of the Complaint due to the fact that Plaintiff is
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proceeding IFP. See 28 U.S.C. § 1915(e)(2). There has been no showing of an “unreasonable
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delay.” With respect to the alleged “conflict of interest,” the Court presumes that Plaintiff is
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referring to the Court’s handling of Plaintiff’s petition for writ of habeas corpus filed in Udom
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v. U.S. Immigration, Custom Enforcement, S.D. Cal. Civil Case No. 11-c-2789-LAB-BLM.
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“The judge’s conduct,” including “the mere fact that a judge has previously expressed an
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opinion on a point of law,” or has issued adverse “prior rulings in the proceeding,” does not
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“‘except in the rarest of circumstances’” form the sole basis for recusal under § 455(a).”
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Holland, 501 F.3d at 1124-25 (citations omitted); see also Leslie v. Grupo ICA, 198 F.3d 1152,
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1159-60 (9th Cir. 1999). Plaintiff does not provide any factual detail or legal analysis to explain
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why he believes this Court has a conflict of interest in handling this matter. Absent some
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specific allegation of personal bias, prejudice or interest, there is no showing that the Court’s
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impartiality may reasonably be questioned. See Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir.
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1980) (“In the absence of specific allegations of personal bias, prejudice, or interest, neither
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prior adverse rulings of a judge nor his participation in a related or prior proceeding is sufficient”
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to require recusal). Plaintiff’s Motion for Recusal is DENIED without prejudice.
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II.
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MOTION TO PROCEED IFP
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All parties instituting any civil action, suit or proceeding in a district court of the United
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States, except an application for writ of habeas corpus must pay a filing fee of $350. See 28
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U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee
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only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See
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Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, “[u]nlike other indigent
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litigants, prisoners proceeding IFP must pay the full amount of filing fees in civil actions and
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appeals pursuant to the PLRA [Prison Litigation Reform Act].” Agyeman v. INS, 296 F.3d 871,
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886 (9th Cir. 2002). As defined by the PLRA, a “prisoner” is “any person incarcerated or
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detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent
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for, violations of criminal law or the terms and conditions of parole, probation, pretrial release,
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or diversionary program.” 28 U.S.C. § 1915(h). Under this definition, “an alien detained by the
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INS pending deportation is not a ‘prisoner’ within the meaning of the PLRA,” because
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deportation proceedings are civil, rather than criminal in nature, and an alien detained pending
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deportation has not necessarily been “accused of, convicted of, sentenced or adjudicated
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delinquent for, a violation of criminal law.” Agyeman, 296 F.3d at 886. Thus, because Plaintiff
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claims he was civilly detained pursuant to immigration or deportation proceedings, and not a
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“prisoner” as defined by 28 U.S.C. § 1915(h), the filing fee provisions of 28 U.S.C. § 1915(b)
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do not apply to him.
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///
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///
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Accordingly, the Court has reviewed Plaintiff’s affidavit of assets, just as it would for any
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other non-prisoner litigant seeking IFP status, see S.D. CAL. CIVLR 3.2(d), finds it is sufficient
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to show that Plaintiff is unable to pay the fees or post securities required to maintain this action,
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and hereby GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF
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No. 2].
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III.
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SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)
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Any complaint filed by a person proceeding IFP is subject to sua sponte dismissal by the
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Court to the extent it contains claims which are “frivolous, malicious, fail to state a claim upon
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which relief may be granted, or seek monetary relief from a defendant immune from such relief.”
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28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam)
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(holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez
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v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits,
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but requires a district court to dismiss an in forma pauperis complaint that fails to state a
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claim.”). “[W]hen determining whether a complaint states a claim, a court must accept as true
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all allegations of material fact and must construe those facts in the light most favorable to the
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plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also Barren v. Harrington,
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152 F.3d 1193, 1194 (9th Cir. 1998) (§ 1915(e)(2) “parallels the language of Federal Rule of
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Civil Procedure 12(b)(6).”).
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Plaintiff’s Complaint names a large number of Defendants, alleges awide variety of
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causes of action and offers very little coherent factual allegations. It appears that Plaintiff
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mainly seeks to hold liable those responsible for his arrest in Los Angeles County and the
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subsequent criminal prosecution. The only party Plaintiff seeks to hold liable in this action with
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any connection to the Southern District of California is the Richard J. Donovan Correctional
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Facility “prison doctor.” (See Compl. at 1, 6.)
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Plaintiff claims in his Complaint that police officers with the Los Angeles Police
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Department violated his civil rights when they allegedly used excessive force during his arrest
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which he claims has caused his current mental health diagnosis. (Id. at 3.) Plaintiff claims that
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he has been falsely arrested, falsely imprisoned and State officials have “forged” his criminal
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conviction. (Id. at 2-4.) These claims appear to mount to an attack on the constitutional validity
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of Plaintiff’s criminal proceedings, and as such, may not be maintained pursuant to 42 U.S.C.
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§ 1983 unless and until he can show that his criminal conviction has already been invalidated.
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Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
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In creating a favorable termination rule in Heck, the Supreme Court relied on “the hoary
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principle that civil tort actions are not appropriate vehicles for challenging the validity of
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outstanding criminal judgments.” Id. at 486. This is precisely what Plaintiff attempts to
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accomplish here. Therefore, to satisfy Heck’s “favorable termination” rule, Plaintiff must first
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allege facts which show that the conviction which forms the basis of his § 1983 Complaint has
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already been: (1) reversed on direct appeal; (2) expunged by executive order; (3) declared
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invalid by a state tribunal authorized to make such a determination; or (4) called into question
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by the grant of a writ of habeas corpus. Heck, 512 U.S. at 487 (emphasis added); see also
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Butterfield v. Bail, 120 F.3d 1023, 1025 (9th Cir. 1997).
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Accordingly, to the extent Plaintiff challenges his previous criminal convictions, his
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§ 1983 claims challenge the constitutional validity of his arrest and must be dismissed without
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prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (finding that an
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action barred by Heck has not yet accrued and thus, must be dismissed without prejudice so that
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the plaintiff may reassert his § 1983 claims if he ever succeeds in invalidating the underlying
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conviction or sentence); accord Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997).
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In addition, Plaintiff seeks to hold the State of California liable for money damages based
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on the alleged violation of his civil rights. The State of California is not a “person” subject to
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suit under § 1983 and is instead, entitled to absolute immunity from monetary damages actions
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under the Eleventh Amendment. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 53-54
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(1996).
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While not entirely clear, it appears that Plaintiff seeks to hold the Deputy Public Defender
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appointed to represent Plaintiff in his criminal proceedings liable for alleged constitutional
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violations. However, a person “acts under color of state law [for purposes of § 1983] only when
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exercising power ‘possessed by virtue of state law and made possible only because the
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wrongdoer is clothed with the authority of state law.’” Polk County v. Dodson, 454 U.S. 312,
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317-18 (1981) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). Attorneys
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appointed to represent a criminal defendant during trial, do not generally act under color of state
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law because representing a client “is essentially a private function ... for which state office and
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authority are not needed.” Polk County, 454 U.S. at 319; United States v. De Gross, 960 F.2d
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1433, 1442 n.12 (9th Cir. 1992). Thus, when publicly appointed counsel are performing as
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advocates, i.e., meeting with clients, investigating possible defenses, presenting evidence at trial
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and arguing to the jury, they do not act under color of state law for section 1983 purposes. See
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Georgia v. McCollum, 505 U.S. 42, 53 (1992); Polk County, 454 U.S. at 320-25; Miranda v.
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Clark County, 319 F.3d 465, 468 (9th Cir. 2003) (en banc) (finding that public defender was not
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a state actor subject to suit under § because, so long as he performs a traditional role of an
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attorney for a client, “his function,” no matter how ineffective, is “to represent his client, not the
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interests of the state or county.”).
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Accordingly, Plaintiff’s claims against Deputy Public Defendant must be dismissed for
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failing to state a claim upon which section 1983 relief may be granted. See 28 U.S.C.
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§ 1915(e)(2)(B)(ii).
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Plaintiff also seeks to hold an unnamed Deputy District Attorney who prosecuted the
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matter, liable for alleged constitutional violations. Criminal prosecutors are absolutely immune
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from civil damages suits premised upon acts committed within the scope of their official duties
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which are “intimately associated with the judicial phase of the criminal process.” Imbler v.
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Pachtman, 424 U.S. 409, 430 (1976); see also Buckley v. Fitzsimmons, 509 U.S. 259, 272-73
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(1993); Burns v. Reed, 500 U.S. 478, 487-93 (1991). A prosecutor is immune even when the
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prosecutor’s malicious or dishonest action deprived the defendant of his or her liberty.
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Ashelman, 793 F.2d at 1075.
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pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) for seeking monetary relief against defendants who
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are immune from such relief.
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Thus, Plaintiff’s claims against this Defendant are dismissed
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Plaintiff also claims that he was denied medications for a multitude of illness by “RJ
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Donovan State Prison physicians employees.” (Compl. at 6.) There are no other allegations
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pertaining to this claim.
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individuals under color of law constitutes a violation of the Eighth Amendment.” Toguchi v.
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Chung, 391 F.3d 1051, 1056-57 (9th Cir. 2004) (citing McGuckin v. Smith, 974 F.2d 1050, 1059
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(9th Cir. 1992)). A violation of the Eighth Amendment occurs when prison officials are
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deliberately indifferent to a prisoner’s medical needs. Id.; see also Estelle v. Gamble, 429 U.S.
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97, 105 (1976).
“The unnecessary and wanton infliction of pain upon incarcerated
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To allege an Eighth Amendment violation, a prisoner must “satisfy both the objective and
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subjective components of a two-part test.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002)
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(citation omitted). First, he must allege that prison officials deprived him of the “minimal
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civilized measure of life’s necessities.” Id. (citation omitted). Second, he must allege the prison
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official “acted with deliberate indifference in doing so.” Id. (citation and internal quotation
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marks omitted).
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A prison official acts with “deliberate indifference ... only if [he is alleged to] know[] of
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and disregard[] an excessive risk to inmate health and safety.” Gibson v. County of Washoe,
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Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002) (citation and internal quotation marks omitted).
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Under this standard, the official must be alleged to “be aware of facts from which the inference
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could be drawn that a substantial risk of serious harm exist[ed],” and must also be alleged to
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also have drawn that inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). “If a [prison
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official] should have been aware of the risk, but was not, then the [official] has not violated the
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Eighth Amendment, no matter how severe the risk.” Gibson, 290 F.3d at 1188 (citation omitted).
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This “subjective approach” focuses only “on what a defendant’s mental attitude actually was.”
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Farmer, 511 U.S. at 839. “Mere negligence in diagnosing or treating a medical condition,
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without more, does not violate a prisoner’s Eighth Amendment rights.” McGuckin, 974 F.2d at
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1059 (alteration and citation omitted).
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Here, Plaintiff fails to describe with any specificity the nature of his alleged serious
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medical need nor does Plaintiff identify with any specificity the individuals whom he claims
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denied him adequate medical care while housed at RJ Donovan. Thus, there are no facts from
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which this Court could find that Plaintiff has a serious medical need. Moreover, Plaintiff fails
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to describe with any specificity whether he suffered any harm as a result of the alleged deliberate
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indifference. If Plaintiff is attempting to allege that there was a delay in treatment, there are no
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facts in the Complaint from which the Court can determine whether he has suffered any injury
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as a result of the Defendants alleged delay in providing treatment. See Shapley v. Nevada Bd.
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of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (a prisoner can make “no claim for
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deliberate medical indifference unless the denial was harmful.” Accordingly, the Court finds
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that Plaintiff has failed to state an Eighth Amendment inadequate medical care claim.
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Plaintiff also seeks to bring claims pursuant to California state law against the named
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Defendants. (See Compl. at 1-2.) However, because Plaintiff cannot identity a violation of a
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federal law, the Court exercises its discretion to dismiss Plaintiff’s pendent state law claims
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without prejudice. See 28 U.S.C. § 1367(c)(3) (“The district court may decline to exercise
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supplemental jurisdiction over a claim under subsection (a) if ... the district court has dismissed
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all claims over which it has original jurisdiction.”); United Mine Workers of America v. Gibbs,
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383 U.S. 715, 726 (1966) (“if the federal claims are dismissed before trial, ... the state claims
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should be dismissed as well.”); Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997)
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(“[O]nce judicial power exists under § 1367(a), retention of supplemental jurisdiction over state
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law claims under 1367(c) is discretionary.”)
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Accordingly, the Court must DISMISS Plaintiff’s Complaint for all the reasons set forth
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above but will provide Plaintiff with the opportunity to amend his Complaint to correct the
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deficiencies of pleading identified by the Court.
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IV.
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CONCLUSION AND ORDER
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Good cause appearing therefor, IT IS HEREBY ORDERED that:
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1.
Plaintiff’s Motion for Recusal [ECF No. 4] is DENIED without prejudice.
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2.
Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is
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GRANTED.
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IT IS FURTHER ORDERED that:
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3.
Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C.
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§ 1915(e)(2)(b). However, Plaintiff is GRANTED forty five (45) days leave from the date this
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Order is filed in which to file a First Amended Complaint which cures the deficiencies of
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pleading noted above.
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reference to the superseded pleading. See S.D. CAL. CIVLR 15.1. Defendants not named and
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any claim not re-alleged in the Amended Complaint will be considered waived. See King v.
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Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). If Plaintiff fails to file an Amended Complaint
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within 45 days, this case shall remain dismissed for failing to state a claim pursuant to 28 U.S.C.
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Plaintiff’s Amended Complaint must be complete in itself without
§ 1915(e)(2).
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The Clerk of Court is directed to mail a Court approved form § 1983 complaint
to Plaintiff.
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DATED: April 10, 2012
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HONORABLE LARRY ALAN BURNS
United States District Judge
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