Adams v. Stables

Filing 41

ORDER: (1) Granting 13 Motion to Proceed in Forma Pauperis (2) Denying 24 , 26 Motions for Appointment of Counsel and U.S. Marshal Service and (3) Dismissing Civil Action for Failing to State a Claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). The Court GRANTS Plaintiff's Motion to Proceed IFP (ECF No. 13); DIRECTS the Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collectin g monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 U SC 1915(b)(2); DENIES Plaintiff's Motion for Appointment of Counsel (ECF No. 26); DISMISSES this action without leave to amend; DENIES Plaintiff's Motion for United States Marshal Service and Discovery (ECF No. 24) as moot; and CERTIFIES th at an IFP appeal from this Order would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). The Clerk shall close the file. Signed by Judge Dana M. Sabraw on 5/11/2017. (Order electronically transmitted to Secretary of CDCR) (All non-registered users served via U.S. Mail Service)(aef)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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EZRA JOHN ADAMS, Jr.,
CDCR #H-27409,

ORDER:

Plaintiff,

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Case No.: 3:16-cv-03051-DMS-NLS

vs.

1) GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 13]

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MARY STABLES, Detective,
2) DENYING MOTIONS FOR
APPOINTMENT OF COUNSEL AND
U.S. MARSHAL SERVICE
[ECF Nos. 24, 26]

Defendant.

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AND

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3) DISMISSING CIVIL ACTION
FOR FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND § 1915A(b)

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EZRA JOHN ADAMS, Jr. (“Plaintiff”), a state prisoner proceeding pro se, initially

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filed this civil action pursuant to 42 U.S.C. § 1983 in the Northern District of California in

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November 2016 (ECF No. 1).

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Plaintiff’s Complaint raises claims related to a 1988 arrest and subsequent criminal

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prosecution in San Diego Superior Court. The sole Defendant is alleged to be a Detective

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employed by the San Diego County Sheriff’s Department. United States Magistrate Judge

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Nandor J. Vadas found the case was filed in an improper venue and transferred it to the

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Southern District of California pursuant to 28 U.S.C. §§ 1391(b) and 1406(a) (ECF No.

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16). Judge Vadas did not rule on Plaintiff’s pending Motion to Proceed In Forma Pauperis

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(ECF No. 13) prior to transfer. Nor did he conduct a preliminary screening of Plaintiff’s

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Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A.

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Plaintiff has since filed a Motion for Appointment of Counsel (ECF No. 26) and a

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Motion requesting service by U.S. Marshal and discovery (ECF No. 24). He has also

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submitted various documents in support of these pending motions (ECF Nos. 20, 22, 28,

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30, 32, 36, 38, 40).

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I.

Motion to Proceed In Forma Pauperis (“IFP”)

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All parties instituting any civil action, suit, or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. 1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed

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IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v.

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Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir.

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2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C.

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§ 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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In addition to the $350 statutory fee, civil litigants must pay an additional administrative
fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

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“certified copy of the trust fund account statement (or institutional equivalent) for ... the 6-

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month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2);

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Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account

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statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits

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in the account for the past six months, or (b) the average monthly balance in the account

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for the past six months, whichever is greater, unless the prisoner has no assets. See 28

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U.S.C. § 1915(b)(1) & (4). The institution having custody of the prisoner then collects

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subsequent payments, assessed at 20% of the preceding month’s income, in any month in

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which his account exceeds $10, and forwards those payments to the Court until the entire

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filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629.

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In support of his IFP Motion, Plaintiff has submitted a copy of his Inmate Statement

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Report and a prison certificate certified by a trust account official at his prison. (See ECF

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No. 13 at 5-8.) These statements show Plaintiff had an average monthly balance of $31.50

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and average monthly deposits of $16.50 in his account over the 6-month period prior to the

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filing of his Complaint. (See ECF No. 13 at 6.) However, he had an available balance of

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zero at the time of filing. Id. Thus, the Court assesses Plaintiff’s initial partial filing fee to

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be $6.30 pursuant to § 1915(b)(1), but acknowledges he may be unable to pay that minimal

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initial fee at this time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a

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prisoner be prohibited from bringing a civil action or appealing a civil action or criminal

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judgment for the reason that the prisoner has no assets and no means by which to pay the

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initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding § 1915(b)(4) acts as a “safety-

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valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay ...

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due to the lack of funds available to him when payment is ordered.”).

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Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 13), but

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declines to exact any initial filing fee because his prison certificate indicates he may have

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“no means to pay it.” Bruce, 136 S. Ct. at 629. The Court directs the Secretary of the

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California Department of Corrections and Rehabilitation (“CDCR”), or his designee, to
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collect the entire $350 balance of the filing fees required by § 1914. See id. The Secretary

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shall then forward them to the Clerk of the Court pursuant to the installment payment

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provisions set forth in § 1915(b)(1). See id.

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II.

Motion for Appointment of Counsel

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Plaintiff has filed a motion requesting an appointment of “learned counsel

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knowledgeable in multiple civil matters/lawsuits, seven or more depending on discovery.”

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(ECF No. 26.) Plaintiff requests counsel be appointed to assist him because he is a “novice”

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and layman at law, has limited time in the law library, and “lack[s] … skill to operate a

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computer[.]” (ECF No. 26 at 1, ECF No. 32 at 10, ECF No. 36 at 1).

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Plaintiff’s pleadings are “liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94

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(2007) (internal citations and quotation marks omitted). “[A] pro se complaint, however

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inartfully pleaded,” is held to less stringent standards than formal pleadings drafted by

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lawyers.” Id.

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However, there is no constitutional right to counsel in a civil case. Lassiter v. Dep’t.

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of Social Services, 452 U.S. 18, 25 (1981). While district courts have discretion to appoint

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counsel to represent an indigent civil litigant, Agyeman v. Corr. Corp. of America, 390 F.3d

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1101, 1103 (9th Cir. 2004), this discretion is rarely exercised and only under “exceptional

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circumstances.” Id. A finding of exceptional circumstances requires “an evaluation of the

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likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability

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to articulate his claims ‘in light of the complexity of the legal issues involved.’” Agyeman,

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390 F.3d at 1103 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

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Based on these standards, the Court DENIES Plaintiff’s Motion for Appointment of

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Counsel (ECF No. 26) without prejudice. Plaintiff appears capable of articulating the

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factual basis for his unlawful search, false arrest, and perjured testimony claims.

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Nevertheless, there is no likelihood he can succeed on the merits of these claims because

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they are clearly untimely and fall within the “core of habeas corpus,” not § 1983. See

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Agyeman, 390 F.3d at 1103; Kimber v. Grant, No. 316CV01472BENAGS, 2017 WL

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902139, at *3 (S.D. Cal. Mar. 6, 2017) (finding no likelihood of success requiring
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appointment of counsel pursuant to § 1915(e)(1) where face of complaint showed

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plaintiff’s claims barred by statute of limitations); Preiser v. Rodriguez, 411 U.S. 475, 486

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(1973) (history of the writ of habeas corpus makes clear that it “has been accepted as the

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specific instrument to obtain release from [unlawful] confinement.”). Therefore, neither

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the interests of justice nor any exceptional circumstances warrant appointment of counsel

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in this case. See LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987).

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III.

Sua Sponte Screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A

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A.

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Because Plaintiff is a prisoner proceeding IFP, his Complaint requires pre-answer

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screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these statutes, the

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Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is

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frivolous, malicious, fails to state a claim, or seeks damages from defendants who are

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immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing

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§ 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28

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§ 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or

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malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d

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903, 920 n.1 (9th Cir. 2014) (citations omitted.)

Standard of Review

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“The standard for determining whether a plaintiff has failed to state a claim upon

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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

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1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual

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matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Detailed factual

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allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

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“Determining whether a complaint states a plausible claim for relief [is] ... a context-

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specific task that requires the reviewing court to draw on its judicial experience and

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common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant5
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unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.

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B.

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Plaintiff contends Defendant Staples, a Detective at the San Diego County Sheriff’s

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Department, conducted an “illegal” search and seizure of his personal property without a

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warrant, committed a “false arrest,” fabricated and/or “orchestrated” false, defamatory, and

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misleading evidence against him, and “perjured herself” while acting “under color of

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authority” “in order to obtain [his] conviction” and “enhance[] [his] illegal sentence.” (ECF

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No. 1 at 3.) Plaintiff requests no monetary damages. Instead, he seeks to “reverse the

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conviction” and to be “immediately discharged … from custody.” (Id. at 3-4.)

Plaintiff’s Allegations

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C.

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Plaintiff’s claims first arose “on or about November 15, 1988.” (ECF No. 1 at 3.) “A

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claim may be dismissed [for failing to state a claim] on the ground that it is barred by the

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applicable statute of limitations only when ‘the running of the statute is apparent on the

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face of the complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d

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954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th

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Cir. 2006)). “‘A complaint cannot be dismissed unless it appears beyond doubt that the

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plaintiff can prove no set of facts that would establish the timeliness of the claim.’” Id.

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(quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)).

Statute of Limitations

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Because § 1983 contains no specific statute of limitation, federal courts apply the

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forum state’s statute of limitations for personal injury actions. Jones v. Blanas, 393 F.3d

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918, 927 (9th Cir. 2004). Before 2003, California’s statute of limitations was one year. Id.

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Effective January 1, 2003, the limitations period was extended to two years. Id. (citing Cal.

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Civ. Proc. Code § 335.1).

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The law of the forum state also governs tolling. Wallace v. Kato, 549 U.S. 384, 394

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(2007) (citing Hardin v. Straub, 490 U.S. 536, 538-39 (1989)). Under California law, the

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statute of limitations for prisoners serving less than a life sentence is tolled for two years.

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Cal. Civ. Proc. Code § 352.1(a). Accordingly, the effective statute of limitations for most

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California prisoners is three years for claims accruing before January 1, 2003 (one year
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limitations period plus two year statutory tolling), and four years for claims accruing

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thereafter (two year limitations period plus two years statutory tolling).

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Unlike the length of the limitations period, however, “the accrual date of a § 1983

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cause of action is a question of federal law that is not resolved by reference to state law.”

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Wallace, 549 U.S. at 388; Hardin, 490 U.S. at 543–44 (federal law governs when a § 1983

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cause of action accrues). “Under the traditional rule of accrual ... the tort cause of action

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accrues, and the statute of limitation begins to run, when the wrongful act or omission

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results in damages.” Wallace, 549 U.S. at 391. In other words, “[u]nder federal law, a claim

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accrues when the plaintiff knows or has reason to know of the injury which is the basis of

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the action.” Maldonado, 370 F.3d at 955.

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In this case, the alleged “wrongful acts” that caused harm to Plaintiff occurred more

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than 28 years before Plaintiff filed his Complaint in this action. Therefore, Plaintiff’s

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claims are far outside California’s statute of limitations—even including all presumed

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periods of tolling provided by statute or pending exhaustion of any administrative

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remedies. Wallace, 591 U.S. at 391; see also Brown v. Valoff, 422 F.3d 926, 943 (9th Cir.

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2005) (stating “the applicable statute of limitations must be tolled while a prisoner

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completes the mandatory exhaustion process” required by 42 U.S.C. § 1997e(a)).

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Specifically, Plaintiff claims Detective Stables falsely arrested him, fabricated

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evidence against him, and lied under oath during the criminal trial and conviction following

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his arrest in November 1988. (ECF No. 1 at 3.) Therefore, Plaintiff had “reason to know”

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of his injury more than two decades ago, yet did not file this case until December 19, 2016.

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See Maldonado, 370 F.3d at 955.

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Finally, Plaintiff’s claims could be considered timely if he alleged facts sufficient to

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show the limitations period may be equitably tolled. See Cervantes, 5 F.3d at 1276–77.

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Generally, federal courts also apply the forum state’s law regarding equitable tolling. Fink,

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192 F.3d at 914. Under California law, however, Plaintiff must meet three conditions to

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equitably toll the statute of limitations: (1) he must have diligently pursued his claim; (2)

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his situation must be the product of forces beyond his control; and (3) defendants must not
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be prejudiced by the application of equitable tolling. See Hull v. Central Pathology Serv.

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Med. Clinic, 28 Cal. App. 4th 1328, 1335 (Cal. Ct. App. 1994); Addison v. State of

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California, 21 Cal.3d 313, 316-17 (Cal. 1978).

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As currently pleaded, Plaintiff has failed to allege facts to support any plausible

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claim for equitable tolling. See Cervantes, 5 F.3d at 1277. Accordingly, Plaintiff’s claims

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against Defendant Stables are barred by the statute of limitations. Plaintiff’s Complaint is

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therefore dismissed for failing to state a claim upon which § 1983 relief may be granted.

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See 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1); Lopez, 203 F.3d at 1126–27.

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D.

Validity of Conviction

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Plaintiff seeks to “reverse his conviction” and to be “released from custody” as a

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result of Defendant Stables’s actions. (ECF No. 1 at 3-4.) Even if his claims were timely,

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Plaintiff cannot proceed pursuant to § 1983, because “[s]uits challenging the validity of [a]

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prisoner’s continued incarceration lie within ‘the heart of habeas corpus.’” Ramirez v.

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Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (quoting Preiser, 411 U.S. at 489–99) (holding

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that a writ of habeas corpus is “explicitly and historically designed” to provide a state

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prisoner with the “exclusive” means to “attack the validity of his confinement” in federal

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court). “‘[A] § 1983 action is a proper remedy for a state prisoner who is making a

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constitutional challenge to the conditions of his prison life, but not to the fact or length of

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his custody.’” Id.; see also Nettles v. Grounds, 830 F.3d 922, 928 (9th Cir. 2016) (en banc)

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(“[C]laims … which would … result[] in immediate release if successful, f[a]ll within the

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core of habeas corpus and therefore [must] be brought, if at all, in habeas.”) (citing Preiser,

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411 U.S. at 487).

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E.

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Finally, while the Court typically grants pro se plaintiffs leave to amend, doing so

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under the present circumstances would be futile. See Lopez, 203 F.3d at 1127; Schmier v.

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U.S. Court of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing

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“[f]utility of amendment” as a proper basis for dismissal without leave to amend).

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Amendment is futile because Plaintiff’s previous attempts at invalidating his conviction

Leave to Amend

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have all proven unavailing. See Nettles, 830 F.3d at 928-29 (noting that plaintiff may not

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bring a § 1983 action that “‘necessarily require[s] [him] to prove the unlawfulness of his

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conviction’” unless he can “first … prove that the conviction … was eliminated, including

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‘by a federal court’s issuance of a writ of habeas corpus.’”) (quoting Heck v. Humphrey,

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512 U.S. 477, 486–87 (1994)).

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A court may take judicial notice of its own records, see Molus v. Swan, No. CIV

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05CV452-MMA WMC, 2009 WL 160937, at *2 (S.D. Cal. Jan. 22, 2009) (citing United

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States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)), and “‘may take notice of

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proceedings in other courts, both within and without the federal judicial system, if those

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proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212,

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1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir.

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2002)). Thus, the Court takes judicial notice of its own records in Adams v. Evans, et al.,

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Civil Case No. 3:09-cv-01123-BEN-RBB (S.D. Cal. 2009), wherein Plaintiff filed a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254, seeking to challenge the validity of the

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same state court conviction at issue in this case. This petition, filed approximately 20 years

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after he was convicted, was dismissed as untimely. See id. ECF Nos. 1, 12, 13. The Court

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also takes judicial notice of docket proceedings before the California Court of Appeals,

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District 4, Division 1, in In re Ezra John Adams, D053086, where Plaintiff filed another

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state habeas petition challenging the same conviction at issue. This petition was also

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denied. See http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=41&doc

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_id=1369135&doc_no=D053086 (last visited May 4, 2017).

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Because Plaintiff would be unable to allege facts showing that his claims are timely

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or that the underlying conviction has been invalidated, amendment of the complaint would

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be futile. See Lopez, 203 F.3d at 1127; Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir.

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2015) (noting that leave to amend is not required if it is “absolutely clear that the

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deficiencies of the complaint could not be cured by amendment.”) (internal citations

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omitted). Consequently, the Court DENIES Plaintiff’s remaining Motion for United States

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Marshal Service and Discovery (ECF No. 24) as moot.
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IV.

Conclusion and Order

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For all the reasons discussed, the Court:

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1)

GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 13);

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2)

DIRECTS the Secretary of the CDCR, or his designee, to collect from

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Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly

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payments from his account in an amount equal to twenty percent (20%) of the preceding

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month’s income. The Secretary shall forward those payments to the Clerk of the Court each

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time the amount in the account exceeds $10. ALL PAYMENTS SHALL BE CLEARLY

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IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION;

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3)

DIRECTS the Clerk of the Court to serve a copy of this Order on Scott

Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001;

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4)

DENIES Plaintiff’s Motion for Appointment of Counsel (ECF No. 26);

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5)

DISMISSES this action without leave to amend;

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6)

DENIES Plaintiff’s Motion for United States Marshal Service and Discovery

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(ECF No. 24) as moot; and
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CERTIFIES that an IFP appeal from this Order would not be taken in good

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faith pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445

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(1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is

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permitted to proceed IFP 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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Dated: May 11, 2017

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