Moreno v. Beebe
Filing
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ORDER granting 2 Motion for Leave to Proceed in forma pauperis, and dismissing complaint for failing to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court DENIES leave to amend as f utile and CERTIFIES that an IFP appeal from this Order of dismissal would not be taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). Signed by Judge Larry Alan Burns on 3/15/16. (All non-registered users served via U.S. Mail Service)(kas)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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GILBERT GREGORY MORENO,
ID #002001-6,
Plaintiff,
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vs.
JACK BEEBE,
Defendant.
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ORDER:
AND
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15-cv-2913 LAB (WVG)
(1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
PURSUANT TO 28 U.S.C. § 1915(a)
[ECF Doc. No. 2]
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Case No.
(2) DISMISSING CIVIL ACTION
FOR FAILING TO STATE A
CLAIM PURSUANT TO
28 U.S.C. § 1915(e)(2)(B)(ii)
Gilbert Gregory Moreno (“Plaintiff”), a mentally disordered offender, currently
21 involuntarily detained at Coalinga State Mental Hospital (“CSMH”), is proceeding pro
22 se in this action pursuant to 42 U.S.C. § 1983 (ECF Doc. No. 1).1 Plaintiff has not
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1
The
notice of a similar
24 v. Wright, S. Court takes judicialNo. 15cv2329 LABaction filed by Plaintiff in Moreno
D. Cal. Civil Case
(BLM), in which he alleged he is
currently being held at CSMH pursuant to California’s Mentally Disordered Offender
25 (MDO) statute. See Compl., ECF Doc. No. 1, at 4; CAL. PENAL CODE §§ 2960 et seq.
to this statute, an
26 Pursuantother criteria may beindividual convicted of certain enumerated crimes and
meeting
civilly committed for “involuntary treatment of a severe
mental disorder” at a state psychiatric hospital as a condition of parole. People v. McKee,
27 47 Cal.4th 1172, 104 Cal. Rptr. 3d 427, 223 P.3d 566, 576-577 (Cal. 2010); CAL. PENAL
2966; see
v. Brewster, No. 1:14CV01536-MJS- PC, 2015
28 CODE §§ 2962;at *2 (E.D. also Simpson2015).
WL 1012827,
Cal. Mar. 6,
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1 prepaid the filing fees required by 28 U.S.C. § 1914(a); instead, he has filed a Motion
2 to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No.
3 2).
4 I.
Motion to Proceed IFP
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All parties instituting any civil action, suit or proceeding in a district court of the
6 United States, except an application for writ of habeas corpus, must pay a filing fee of
7 $400.2 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to
8 prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28
9 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
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However, “[u]nlike other indigent litigants, prisoners proceeding IFP must pay the
11 full amount of filing fees in civil actions and appeals pursuant to the PLRA [Prison
12 Litigation Reform Act].” Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002). As defined
13 by the PLRA, a “prisoner” is “any person incarcerated or detained in any facility who is
14 accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of
15 criminal law or the terms and conditions of parole, probation, pretrial release, or
16 diversionary program.” 28 U.S.C. § 1915(h). A “civil detainee” on the other hand, is not
17 a “prisoner” within the meaning of the PLRA. Andrews v. King, 398 F.3d 1113, 1122
18 (9th Cir 2005); Agyeman, 296 F.3d at 886 (holding that INS detainee not also facing
19 criminal charges is not a “prisoner” under § 1915); see also Page v. Torrey, 201 F.3d
20 1136, 1140 (9th Cir. 2000) (person confined under California’s Sexually Violent
21 Predator Act [“SVPA”], while a “a ‘prisoner’ within the meaning of the PLRA when he
22 served time for his conviction, . . . ceased being a ‘prisoner’ when he was released from
23 the custody of the Department of Corrections.”); Mullen v. Surtshin, 590 F. Supp. 2d
24 1233, 1240 (N.D. Cal. 2008) (holding plaintiff “adjudicated NGI [not guilty by reason
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In addition
$350
litigants must pay an additional
27 administrative fee ofto theSee 28 statutory fee, civil(Judicial Conference Schedule of
$50.
U.S.C. § 1914(a)
2014). The additional $50
28 Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1,to proceed IFP. Id.
administrative fee does not apply to persons granted leave
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1 of insanity] and committed to [Napa State Hospital] as a result of that adjudication” was
2 “not a prisoner as defined by the PLRA.”).
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Because Plaintiff is involuntarily detained at CSMH as a result of having been
4 involuntarily committed as a mentally disordered offender, he does not currently qualify
5 as a “prisoner” as defined by 28 U.S.C. § 1915(h), and the filing fee provisions of 28
6 U.S.C. § 1915(b) do not appear applicable to this case. Page, 201 F.3d at 1140.
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Therefore, the Court has reviewed Plaintiff’s affidavit of assets, just as it would
8 for any other non-prisoner litigant seeking IFP status, and finds it is sufficient to show
9 that he is unable to pay the fees or post securities required to maintain a civil action. See
10 S.D. CAL. CIVLR 3.2(d). Accordingly, Plaintiff’s Motion to Proceed IFP pursuant to 28
11 U.S.C. § 1915(a) is GRANTED (ECF Doc. No. 2).
12 II.
SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)
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A.
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A complaint filed by any person proceeding IFP is subject to sua sponte dismissal,
Standard of Review
15 however, if it is “frivolous, malicious, fail[s] to state a claim upon which relief may be
16 granted, or seek[s] monetary relief from a defendant immune from such relief.” 28 U.S.C.
17 § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam)
18 (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”);
19 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not
20 only permits, but requires a district court to dismiss an in forma pauperis complaint that
21 fails to state a claim.”).
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All complaints must contain “a short and plain statement of the claim showing that
23 the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Detailed factual allegations are
24 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
25 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
26 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining whether
27 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires
28 the reviewing court to draw on its judicial experience and common sense.” Id. The “mere
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1 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also
2 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
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“When there are well-pleaded factual allegations, a court should assume their
4 veracity, and then determine whether they plausibly give rise to an entitlement to relief.”
5 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
6 (“[W]hen determining whether a complaint states a claim, a court must accept as true all
7 allegations of material fact and must construe those facts in the light most favorable to
8 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that
9 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).
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However, while the court “ha[s] an obligation where the petitioner is pro se,
11 particularly in civil rights cases, to construe the pleadings liberally and to afford the
12 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.
13 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not
14 “supply essential elements of claims that were not initially pled.” Ivey v. Board of
15 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
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B.
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While far from clear, it appears Plaintiff seeks to employ the Civil Rights Act to
Allegations in Plaintiff’s Complaint
18 “file[] criminal charges” against Jack Beebe, because he “was going to testify against
19 [Plaintiff],” in unidentified San Diego Superior Court proceedings and “lie” because he
20 “didn’t like [Plaintiff]” who “never broke the law.” Compl. at 3. Plaintiff claims Beebe’s
21 potential testimony “pressur[ed]” him into entering a plea bargain, and resulted in his
22 “false imprisonment.” Id. at 3-5. Plaintiff seeks $100,000 in damages and “jail time for
23 Mr. Beebe,” based on his “obstruction of justice.” Id. at 4, 5.
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C.
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In order to state a claim under 42 U.S.C. § 1983, the Plaintiff must allege facts to
42 U.S.C. § 1983
26 show: (1) the violation of a rights secured by the Constitution or laws of the United
27 States, and (2) that the alleged deprivations were committed by persons acting under the
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1 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Karim-Panahi v. Los
2 Angeles Police Dept., 839 F.2d 621, 624 (9th Cir. 1988). He has done neither.
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First, Plaintiff’s Complaint lacks any allegation that the sole named Defendant,
4 Jack Beebe, a “pool cleaner” who appears to have been a potential witness against him
5 in criminal proceedings which resulted in Plaintiff’s arrest or civil commitment, see
6 Compl. at 2, acted “under color of state law.” West, 487 U.S. at 48; see also Briscoe v.
7 LaHue, 460 U.S. 325, 329-30 (1983) (“It is beyond question that, when a private party
8 gives testimony in open court in a criminal trial, that act is not performed ‘under color
9 of law.’”).
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Second, even if Plaintiff had or could allege facts to show that Beebe acted under
11 color of state law, Plaintiff still has no recourse under § 1983 because he has alleged no
12 violation of a Constitutional right, and the Civil Rights Act does not include a private
13 cause of action based on alleged violations of criminal law like the “obstruction of
14 justice” which Plaintiff alleges Beebe committed here. See Compl. at 4.
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Section 1983 only “creates a cause of action for violations of the federal
16 Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir.
17 1997) (internal quotations omitted). To the extent Plaintiff alleges violations of state law,
18 or claims the deprivation of a state-created interests that reach beyond those guaranteed
19 by the federal Constitution, “[s]ection 1983 offers no redress.” Id.; see also Lovell v.
20 Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 1996) (explaining that a violation
21 of state law may not form the basis of a section 1983 action); Ellis v. City of San Diego,
22 176 F.3d 1183, 1189-90 (9th Cir. 1999) (affirming dismissal of alleged violations of 16
23 sections of the California Penal Code and one violation of the California Health and
24 Safety Code on grounds that “these code sections do not create enforceable individual
25 rights.”). When a criminal statute is violated, the question of whether to prosecute and
26 what criminal charges to file or bring are decisions vested in the discretion of a
27 prosecutor. United States v. Batchelder, 442 U.S. 114, 124 (1979); see also Inmates of
28 Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (2d Cir. 1973) (prosecution of
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1 state officials for alleged violation of inmates’ federal civil rights is within the discretion
2 of the U.S. Attorney). Criminal statutes generally do not provide any express private
3 cause of action or other basis for civil liability, see, e.g., Aldabe v. Aldabe, 616 F.2d
4 1089, 1092 (9th Cir. 1980) (18 U.S.C. §§ 241 and 242 provide no private right of action
5 and cannot form basis for civil suit), and the Supreme Court has noted that a private right
6 of action under a criminal statute has rarely been implied. See Chrysler Corp. v. Brown,
7 441 U.S. 281, 316 (1979).
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Therefore, without more, Plaintiff’s Complaint must be dismissed in its entirety
9 pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii) for failing to state a claim upon which § 1983
10 relief can be granted. Lopez, 203 F.3d at 1127.
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D.
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Finally, while FED. R. CIV. P. 15(a)(2) provides that “[t]he court should give leave
Leave to Amend
13 [to amend] freely when justice so requires,” the Court further finds that amendment
14 under the circumstances of this case would be futile.3 See Vasquez v. Los Angeles
15 County, 487 F.3d 1246, 1258 (9th Cir. 2007) (citing Schmier v. U.S. Court of Appeals
16 for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing “[f]utility of
17 amendment” as a proper basis for dismissal without leave to amend)).
18 III.
CONCLUSION AND ORDER
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For the reasons explained, the Court:
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GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C.
21 § 1915(a) (ECF Doc. No. 2);
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Amendment is futile because even if Plaintiff could somehow allege facts to
show Beebe acted under color of state law and in so doing deprived Plaintiff of some
constitutional right by proffering sworn testimony related to Plaintiff’s underlying
criminal or civil commitment proceedings, Beebe would be entitled to absolute
immunity. See Briscoe, 460 U.S. at 334 (“At least with respect to private witnesses, it is
clear that § 1983 did not abrogate the absolute immunity existing at common law....”);
Holt v. Castaneda, 832 F.2d 123, 127 (9th Cir. 1987) (“[W]e hold that witnesses who
testify in court at adversarial pretrial hearings are absolutely immune from liability under
section 1983 for damages allegedly caused by their testimony.”).
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2.
DISMISSES Plaintiff’s Complaint for failing to state a claim upon which
2 § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); and
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DENIES leave to amend as futile and CERTIFIES that an IFP appeal from
4 this Order of dismissal would not be taken “in good faith” pursuant to 28 U.S.C.
5 § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v.
6 Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP
7 on appeal only if appeal would not be frivolous).
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The Clerk shall close the file.
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IT IS SO ORDERED.
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11 DATED: March 15, 2016
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HONORABLE LARRY ALAN BURNS
United States District Judge
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