Rose v. Brown et al

Filing 14

ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM. The Court hereby dismisses the FAC and SAC with prejudice. Signed by Judge Barry Ted Moskowitz on 5/30/2019.(All non-registered users served via U.S. Mail Service)(sjm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 18-cv-01461-BTM-MDD
JAMES EDWARD ROSE,
Plaintiff,

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v.
EDMUND GERALD BROWN,
Governor; STATE OF
CALIFORNIA; COUNTY OF SAN
DIEGO; ALEX LANDON, an
individual,

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ORDER DISMISSING COMPLAINT
FOR FAILURE TO STATE A
CLAIM
[ECF Nos. 10, 12]

Defendants.

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Pending before the Court are Plaintiff James Edward Rose’s First Amended

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Complaint, Motion to Open Judgment in 1974 Homicide Conviction, and Motion to

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Purge Plaintiff’s Criminal Records and Conviction. (ECF Nos. 10, 12). The Court

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interprets the Motions as a Second Amended Complaint. (ECF No. 12). For the

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reasons set forth below, both of Plaintiff’s amended pleadings are dismissed with

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prejudice. (ECF Nos. 10, 12).

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I.

BACKGROUND
Plaintiff initiated this action on June 25, 2018. (ECF No. 1). The Complaint

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asserted civil rights violations under 42 U.S.C. §§ 1983, 1985, and 1987 and

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names as defendants Governor Brown, the State of California, the County of San

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Diego, and Attorney Alex Landon. (ECF No. 1 “Compl.”). Plaintiff alleged that forty

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years ago, he was extradited from Georgia to California pursuant to a detainer and

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warrant naming a man other than Plaintiff. (Compl. at 1-3). Because the warrant

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and indictment allegedly named a “fictitious character who did not exist,” and

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whose name did not match Plaintiff’s, Plaintiff asserted he was wrongfully

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kidnapped, convicted of first degree murder, and sentenced to eight years in

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prison. Id. The Complaint also alleged legal malpractice against Plaintiff’s defense

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attorney, (Compl. at 7) and raised tort claims against prison officials for beating

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him and causing other injuries while he was incarcerated. (Compl. at 5-7).

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On December 10, 2018, the Court dismissed Plaintiff’s Complaint for failure

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to state a claim. (ECF No. 9). The Court gave Plaintiff until January 4, 2019 to file

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a First Amended Complaint, and specified that failure to timely file would result in

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the dismissal of the action. (ECF No. 9 at 10). Plaintiff filed the First Amended

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Complaint (“FAC”) on February 4, 2019 and stated he was too ill to make the

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January 4, 2019 deadline. (ECF No. 10).

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dismissed Defendants and largely repeats the earlier pleading. (ECF No. 10). On

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May 20, 2019, Plaintiff moved this Court to open the judgment in his 1974 homicide

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conviction and purge his criminal record and convictions. (ECF No. 12). The

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Motion is formatted like a complaint, re-alleges the facts in the original Complaint

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and FAC, and aside from cursorily referencing the Fourteenth Amendment at the

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conclusion of the pleading, does not set forth the statutory or other constitutional

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basis basis for relief. (ECF No. 12). The Court interprets the pleading as a Second

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Amended Complaint (“SAC”) re-alleging Plaintiff’s section 1983 claims.

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II.

The FAC names the previously

LEGAL STANDARD

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The court must dismiss an IFP litigant’s complaint if it determines the action

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“is frivolous or malicious; fails to state a claim on which relief may be granted; or
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seeks monetary relief against a defendant who is immune from such relief.” 28

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U.S.C. § 1915(e)(2)(B)(i)-(iii). Under Federal Rule of Civil Procedure 8(a)(2), all

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complaints must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The pleading must “contain

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sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

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on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when

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the plaintiff pleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Id. Conclusory

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statements, devoid of factual support, are insufficient. Id.
III.

DISCUSSION

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Plaintiff submitted the FAC a month after the Court-ordered deadline. (ECF

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No. 9). The Court may thus dismiss this action because of Plaintiff’s failure to

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prosecute in compliance with a court order requiring amendment. See Lira v.

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Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage

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of the opportunity to fix his complaint, a district court may convert the dismissal of

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the complaint into dismissal of the entire action.”).

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Even if the Court were to accept Plaintiff’s untimely filed FAC and SAC, the

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Court must nevertheless dismiss the pleadings because Plaintiff’s amendments

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have not cured the deficiencies identified in the Court’s December 2018 Order.

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First, Plaintiff still does not allege facts curing the statute of limitations or equitable

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tolling issues. The fact remains that Plaintiff filed this section 1983 Complaint forty

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years after his claim first accrued, well beyond the statutory deadline. See Cal Civ.

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Proc. Code § 335.1 (providing a section 1983 claim must be brought within two

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years); Cal Civ. Proc. Code § 352.1 (providing that if the cause of action arises

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while claimant is serving a non-life prison sentence, statute of limitations may be

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equitably tolled for up to two years). As currently pled, Plaintiff can prove no set

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of facts to establish the timeliness of the Complaint. Von Saher v. Norton Simon
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Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (“A claim may be

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dismissed [for failure 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

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on the face of the complaint.’ ”)

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Plaintiff further fails to allege facts supporting equitable tolling, including that

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he diligently pursued his claim, that forces outside of his control have left him

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without judicial forum for the resultion of his claim, and that defendants would not

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be prejudiced by the decades long delay. See Hull v. Central Pathology Serv.

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Medical Clinic, 28 Cal. App. 4th 1328 (1994) (enumerating conditions necessary

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to equitably toll statute of limitations).

Although Plaintiff alleges that he

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immediately appealed his alleged unlawful extradition when he arrived to

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California, the pleadings state that the presiding federal judge declined to award

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Plaintiff any relief for the “kidnapping” and Plaintiff did not appeal. (SAC ¶14; FAC

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at 2). Plaintiff’s reasons for not appealing are devoid of factual basis and are not

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plausible. (FAC at 2 (alleging Plaintiff had a personal letter from United States

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Supreme Court Justice Douglas stating that he “would hear the case if the plaintiff

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appealed to the United States Supreme Court,” but another attorney withdrew the

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appeal)). Furthermore, Plaintiff’s generalized fear of the prison system after his

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release, though lamentable, cannot excuse the forty year delay. (SAC ¶¶ 21, 31).

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The amended pleadings do not set forth grounds for equitable tolling.

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Plaintiff’s pleadings primarily allege ineffective assistance provided by his

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public defender. But Plaintiff cannot assert a 42 U.S.C. § 1983 claim against his

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public defender without showing that the public defender acted under the color of

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state law. See Polk County v. Dodson, 454 U.S. 312, 317-18 (1981) (stating that

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attorneys representing criminal defendants generally do not act under color of state

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law because such representation is “essentially a private function . . . for which

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state office and authority are not needed”); Miranda v. Clark County, 319 F.3d 465,

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468 (9th Cir. 2003) (en banc) (holding that public defender was not a state actor
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subject to suit under § 1983 because, so long as she performs a traditional role of

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an attorney for a client, “h[er] function,” no matter how ineffective, is “to represent

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h[er] client, not the interests of the state or county.”). Because Plaintiff still has not

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set forth facts plausibly showing his attorney’s representation constituted state

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action, these claims remain insufficiently pled.

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The pleadings again name the State of California as a Defendant. (FAC at

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2; SAC ¶ 25). However, the Court previously dismissed the State of California as

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a party to the action pursuant to 28 U.S.C. §§ 1915(e)(2)(B) as barred by the

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Eleventh Amendment. (ECF No. 9 at 6-7). Plaintiff has not shown that the State

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of California has affirmatively waived its sovereign immunity. See Krainski v. Nev.

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ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 967 (9th Cir.

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2010) (“The Eleventh Amendment bars suits against the State or its agencies for

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all types of relief, absent unequivocal consent by the state.”) (internal citations

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omitted). Accordingly, Plaintiff cannot state a claim against the State of California.

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Finally, Plaintiff cannot state a claim for monetary damages under 42 U.S.C.

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§ 1983 because a favorable ruling would necessarily imply the invalidity of

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Plaintiff’s conviction, which remains in effect according to the pleadings. See Heck

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v. Humphrey, 512 U.S. 477, 486-87 (1994) (providing that section 1983 claims that

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“necessarily imply the invalidity of [plaintiff’s] conviction or sentence” must be

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dismissed “unless the plaintiff can demonstrate that the conviction or sentence has

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already been invalidated”); Guerrero v. Gates, 442 F.3d 697, 704 (9th Cir. 2006)

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(holding Heck applies equally to plaintiffs no longer in custody); SAC ¶ 14 (stating

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a sympathetic federal judge told Plaintiff “there was nothing he could do”). The

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Court thus concludes that the pleadings fail to state a claim upon which relief can

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be granted, and dismisses this civil action. See 28 U.S.C. § 1915(e)(2)(B)(ii).

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//

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//

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//
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IV.

CONCLUSION

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The Court hereby dismisses the FAC and SAC with prejudice. (ECF Nos.

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10, 12). The Clerk of Court is directed to enter final judgment and close the case.

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IT IS SO ORDERED.
Dated: May 30, 2019

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