Rojas v. Dumains et al

Filing 4

ORDER granting 2 Motion for Leave to Proceed in forma pauperis. 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 collecting 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 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR) (Copy served on Secretary) (Blank copy of Complaint sent to Plaintiff). Signed by Judge Cathy Ann Bencivengo on 8/14/2017. (All non-registered users served via U.S. Mail Service)(jjg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CESAR ROJAS, Case No.: 3:17-cv-1432-CAB-MDD Plaintiff, 12 13 v. 14 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(a); AND(2) SUA SPONTE DISMISSING CIVIL ACTION PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) BONNIE DUMANIS; SOUTH BAY SUPERIOR COURT; DISTRICT ATTORNEY, 15 16 Defendant. 17 18 19 Cesar Armando Rojas (“Plaintiff”), a state inmate currently incarcerated at Mule 20 Creek State Prison, has filed a civil rights complaint (“Compl.”) pursuant to 42 U.S.C. 21 § 1983. (ECF No. 1.) Plaintiff has not paid the civil filing fees required by 28 U.S.C. 22 § 1914(a) to commence a civil action; instead he has filed a Motion to Proceed In Forma 23 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.) 24 I. 25 Motion to Proceed IFP All parties instituting any civil action, suit or proceeding in a district court of the 26 United States must pay a filing fee. See 28 U.S.C. § 1914(a). An action may proceed 27 despite a plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed 28 IFP pursuant to 28 U.S.C. § 1915(a). Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1 3:17-cv-1432-CAB-MDD 1 1999). However, if the plaintiff is a prisoner, as Plaintiff is here, even if he is granted 2 leave to proceed IFP, he remains obligated to pay the full entire fee in “increments,” see 3 Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his 4 action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2). 5 Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act 6 (“PLRA”), prisoners seeking leave to proceed IFP must submit a “certified copy of the 7 trust fund account statement (or institutional equivalent) for the . . . six-month period 8 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 9 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, 10 the Court assesses an initial payment of 20 percent of (a) the average monthly deposits in 11 the account for the past six months, or (b) the average monthly balance in the account for 12 the past six months, whichever is greater, unless the prisoner has no assets. See 28 13 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the 14 prisoner then collects subsequent payments, assessed at 20 percent of the preceding 15 month’s income, in any month in which the prisoner’s account exceeds $10, and forwards 16 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. 17 § 1915(b)(2). 18 In support of his IFP Motion, Plaintiff has submitted a certified copy of his inmate 19 trust account statement and activity for the six-month period prior to the filing of his 20 Complaint as required by 28 U.S.C. § 1915(a)(2) and S.D. Cal. CivLR 3.2. The 21 statement shows Plaintiff has $0.02 in available funds to his credit at the time of filing. 22 The Court GRANTS Plaintiff’s Motion to Proceed IFP. Because Plaintiff has insufficient 23 funds to pay a partial filing fee, the Court assesses no initial partial filing fee per 28 24 U.S.C. § 1915(b)(1). See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a 25 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 26 judgment for the reason that the prisoner has no assets and no means by which to pay the 27 initial partial filing fee.”); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding 28 that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s 2 3:17-cv-1432-CAB-MDD 1 IFP case based solely on a “failure to pay . . . due to the lack of funds available to him 2 when payment is ordered.”) However, the entire $350 balance of the filing fees due for 3 this case must be collected by the CDCR and forwarded to the Clerk of the Court 4 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1). 5 II. 6 Sua Sponte Screening per 28 U.S.C. § 1915(e)(2) and § 1915A “The Court shall review, before docketing, if feasible or, in any event, as soon as 7 practicable after docketing,” complaints filed by all persons proceeding IFP, and by 8 those, like Plaintiff, who are “incarcerated or detained in any facility [and] accused of, 9 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or 10 conditions of parole, probation, pretrial release, or diversionary program.” See 28 U.S.C. 11 §§ 1915(e)(2) and 1915A(b). The Court must sua sponte dismiss complaints, or any 12 portions thereof, which are frivolous, malicious, fail to state a claim, or which seek 13 damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; 14 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). 15 “Section 1983 creates a private right of action against individuals who, acting 16 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 17 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 18 substantive rights, but merely provides a method for vindicating federal rights elsewhere 19 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 20 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 21 deprivation of a right secured by the Constitution and laws of the United States, and (2) 22 that the deprivation was committed by a person acting under color of state law.” Tsao v. 23 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). Plaintiff’s allegations 24 A. 25 Plaintiff’s claims are far from clear but he appears to allege that he was engaged in 26 criminal proceedings in San Diego Superior Court from 2013 to 2014. (See Compl. at 3.) 27 Plaintiff claims Bonnie Dumanis, the District Attorney for the County of San Diego, 28 caused his bail to be increased and committed perjury. (Id. at 2-3.) It is not entirely 3 3:17-cv-1432-CAB-MDD 1 clear, but is appears that Plaintiff is claiming that he is serving a longer sentence 2 following his conviction because he claims Defendant Dumanis lied about how many 3 prior criminal convictions he has on his record. (Id. at 2-4.) 4 Plaintiff also indicates that he is “suing public defender” because he claims the 5 Deputy Public Defender assigned to his criminal matter “lied” to him and as a result, 6 Plaintiff must serve a longer prison sentence. (Id. at 4.) Plaintiff seeks monetary 7 damages and “my freedom in life working, eating, having fun.” (Id. at 7.) 8 B. 9 As an initial matter the Court finds that Plaintiff’s claims for monetary damages Heck v. Humphrey 10 are barred by the doctrine announced in Heck v. Humphry, 512 U.S. 477, 486-87 (1994), 11 where the Supreme Court stated: 12 13 14 15 16 17 “We hold that in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.” 18 19 20 21 22 23 24 25 26 27 28 Id. at 486-87. “Suits challenging the validity of the prisoner’s continued incarceration lie within ‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003), quoting Preiser v. Rodriguez, 411 U.S. 475, 489-99 (1973) (holding that a writ of habeas corpus is “explicitly and historically designed” to provide a state prisoner with the “exclusive” means to “attack the validity of his confinement” in federal court). Because Plaintiff seeks relief based on a conviction arising from the alleged perjury, his claims amount to an attack on the validity of his underlying criminal 4 3:17-cv-1432-CAB-MDD 1 conviction, and are not addressable under § 1983, unless his conviction has already been 2 invalidated. Heck, 512 U.S. at 486-87; Ramirez, 334 F.3d at 855-56 (“Absent such a 3 showing, ‘[e]ven a prisoner who has fully exhausted available state remedies has no 4 cause of action under § 1983 . . . .’”), quoting Heck, 512 U.S. at 489. Plaintiff alleges the 5 District Attorney and his Deputy Public Defender committed perjury which resulted in a 6 longer prison sentence. (See Compl. at 3-5.) Such claims “necessarily imply the 7 invalidity” of his criminal conviction and continued incarceration. Heck, 512 U.S. at 487. 8 In other words, were Plaintiff to succeed, an award of damages would “necessarily imply 9 the invalidity” of his conviction and/or sentence. Id., 512 U.S. at 487; see also Guerrero 10 v. Gates, 442 F.3d 697, 701 (9th Cir. 2006) (finding § 1983 action stemming from 11 allegations of wrongful arrest, malicious prosecution, and a general conspiracy of “bad 12 behavior” among officials in connection with the plaintiff’s arrest, prosecution, and 13 incarceration barred by Heck). 14 C. 15 In addition, to state a claim under 42 U.S.C. § 1983 against his defense counsel, State Action 16 Plaintiff must also allege that his defense counsel acted “under color of state law” to 17 deprive him of a right secured by the Constitution or laws of the United States. West v. 18 Atkins, 487 U.S. 42, 48 (1988). A person “acts under color of state law [for purposes of 19 § 1983] only when exercising power ‘possessed by virtue of state law and made possible 20 only because the wrongdoer is clothed with the authority of state law.’” Polk County v. 21 Dodson, 454 U.S. 312, 317-18 (1981), quoting United States v. Classic, 313 U.S. 299, 22 326 (1941). Attorneys who represent criminal defendants generally do not act under 23 color of state law because representing a client “is essentially a private function . . . for 24 which state office and authority are not needed.” Dodson, 454 U.S. at 319; United States 25 v. De Gross, 960 F.2d 1433, 1442 n.12 (9th Cir. 1992). When attorneys perform as 26 advocates, i.e., meet with clients, investigate possible defenses, present evidence at trial, 27 or make arguments to a judge or jury, they do not act under color of state law for section 28 1983 purposes. See Georgia v. McCollum, 505 U.S. 42, 53 (1992); Dodson, 454 U.S. at 5 3:17-cv-1432-CAB-MDD 1 320-25; Miranda v. Clark County, 319 F.3d 465, 468 (9th Cir. 2003) (en banc) (finding 2 that public defender was not a state actor subject to suit under § 1983 because, so long as 3 she performs a traditional role of an attorney for a client, “h[er] function,” no matter how 4 ineffective, is “to represent h[er] client, not the interests of the state or county.”) 5 D. 6 Finally, to the extent Plaintiff seeks damages against an unnamed San Diego Judicial and Prosecutorial Immunity 7 Superior Court Judge or Defendant Dumanis for either presiding over his criminal 8 proceedings or prosecuting his criminal matter, his claims are legally frivolous, for 9 “[j]udges are absolutely immune from damage liability for acts performed in their official 10 capacities.” Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). As a prosecutor, 11 Bonnie Dumanis is likewise entitled to absolute prosecutorial immunity. Id. at 1076 12 (“Where a prosecutor acts as an advocate ‘in initiating a prosecution and in presenting the 13 state’s case,’ absolute immunity applies.” (quoting Imbler v. Pachtman, 424 U.S. 409, 14 431 (1976)); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 912 (9th Cir. 2012) 15 (“Prosecutors performing their official prosecutorial functions are entitled to absolute 16 immunity against constitutional torts.”). 17 E. 18 Thus, for all these reasons, the Court finds that Plaintiff’s Complaint must be Conclusion 19 dismissed sua sponte because it fails to state a claim and for seeking monetary damages 20 against immune defendants. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez, 203 21 F.3d at 1126-27. Because Plaintiff is proceeding without counsel, the Court has provided 22 him “notice of the deficiencies in his complaint,” and will grant him an opportunity to 23 amend his Complaint. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012), citing 24 Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). 25 III. Conclusion and Orders 26 Good cause appearing, the Court: 27 1. 28 GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 6 3:17-cv-1432-CAB-MDD 1 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 2 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 3 monthly payments from his account in an amount equal to twenty percent (20%) of the 4 preceding month’s income and forwarding those payments to the Clerk of the Court each 5 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 6 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 7 ASSIGNED TO THIS ACTION. 8 9 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. 10 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 11 relief may be granted and for seeking monetary damages against immune defendants 12 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and GRANTS him forty-five (45) 13 days leave from the date of this Order in which to file an Amended Complaint which 14 cures all the deficiencies of pleading noted. Plaintiff’s Amended Complaint must be 15 complete in itself without reference to his original pleading. Defendants not named and 16 any claims not re-alleged in the Amended Complaint will be considered waived. See S.D. 17 Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 18 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. 19 Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with 20 leave to amend which are not re-alleged in an amended pleading may be “considered 21 waived if not repled.”). 22 5. DIRECTS the Clerk of Court to mail to Plaintiff, together with this Order, a 23 blank copy of the Court’s form “Complaint under the Civil Rights Act, 42 U.S.C. 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 7 3:17-cv-1432-CAB-MDD 1 2 3 § 1983” for his use in amending. IT IS SO ORDERED. Dated: August 14, 2017 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 3:17-cv-1432-CAB-MDD

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