Jackson v. Grimaldo

Filing 3

ORDER and REPORT AND RECOMMENDATION. IT IS HEREBY ORDERED that Plaintiff's Application to Proceed in Forma Pauperis is granted. IT IS FURTHER ORDERED that Plaintiff's claims against Defendant Grimaldo be dismissed without prejudi ce and with leave to amend. Plaintiff shall have until 11/17/17 to file an amended complaint correcting the noted deficiencies. IT IS HEREBY RECOMMENDED that Plaintiff's claims against Defendant John Doe be dismissed with prejudice for failure to state a claim upon which relief can be granted. Objections to R&R due by 10/31/2017. Signed by Magistrate Judge George Foley, Jr on 10/17/17. (Copies have been distributed pursuant to the NEF - ADR)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 9 10 11 12 13 14 15 16 17 ROBERT JACKSON, ) ) Plaintiff, ) ) vs. ) ) DIEGO GRIMALDO, ) ) ) Defendant. ) __________________________________________) Case No. 2:16-cv-01878-APG-GWF ORDER This matter is before the Court on Plaintiff’s Application to Proceed in Forma Pauperis (ECF No. 1), filed on August 8, 2016. BACKGROUND In Count I, Plaintiff alleges that his right to due process of the law was violated by Defendant 18 Diego Grimaldo of the United States Marshal Service and John Doe of the U.S. Attorney’s Office. 19 Specifically, Plaintiff asserts that on August 5, 2014, during an evidentiary hearing, Defendant falsely 20 testified as to Plaintiff’s alleged “flight” and attempt to conceal his identity. In Count II, Plaintiff 21 alleges that his right to a fair trial and due process of the law was violated on August 18, 2014 when 22 Defendant testified before a jury at Plaintiff’s trial. He alleges that Defendant’s testimony was false 23 and misled the jury. In Count III, Plaintiff alleges that his right against unreasonable search and 24 seizure and right to due process of the law was violated. Plaintiff was subject to a traffic stop on May 25 20, 2011 and he alleges that the traffic stop, arrest, and subsequent incarceration was unconstitutional 26 because the warrant was void, he was not charged until June 1, 2011, and because a detective 27 admitted to lying under oath before the federal grand jury that indicted Plaintiff. According to his 28 complaint, Plaintiff was convicted and is in custody at High Desert State Prison. 1 2 DISCUSSION I. 3 Application to Proceed In Forma Pauperis Plaintiff filed this instant action and attached a financial affidavit to his application and 4 complaint as required by 28 U.S.C. § 1915(a). Reviewing Plaintiff’s financial affidavit pursuant to 5 28 U.S.C. § 1915, the Court finds that Plaintiff is unable to pre-pay the filing fee. As a result, 6 Plaintiff's request to proceed in forma pauperis in federal court is granted. 7 II. 8 9 Screening the Complaint Upon granting a request to proceed in forma pauperis, a court must additionally screen a complaint pursuant to 28 U.S.C. § 1915(e). Specifically, federal courts are given the authority to 10 dismiss a case if the action is legally “frivolous or malicious,” fails to state a claim upon which relief 11 may be granted, or seeks monetary relief from a defendant/third party plaintiff who is immune from 12 such relief. 28 U.S.C. § 1915(e)(2). A complaint, or portion thereof, should be dismissed for failure 13 to state a claim upon which relief may be granted “if it appears beyond a doubt that the plaintiff can 14 prove no set of facts in support of his claims that would entitle him to relief.” Buckey v. Los Angeles, 15 968 F.2d 791, 794 (9th Cir. 1992). A complaint may be dismissed as frivolous if it is premised on a 16 nonexistent legal interest or delusional factual scenario. Neitzke v. Williams, 490 U.S. 319, 327–28 17 (1989). Moreover, “a finding of factual frivolousness is appropriate when the facts alleged rise to the 18 level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts 19 available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). When a court dismisses 20 a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with 21 directions as to curing its deficiencies, unless it is clear from the face of the complaint that the 22 deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th 23 Cir. 1995). 24 The Court shall liberally construe a complaint by a pro se litigant. Eldridge v. Block, 832 F.2d 25 1132, 1137 (9th Cir. 2007). This is especially important for civil rights complaints. Ferdik v. 26 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, a liberal construction may not be used to 27 supply an essential element of the claim absent from the complaint. Bruns v. Nat’l Credit Union 28 Admin., 12 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 2 1 Cir. 1982)). 2 Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint 3 for failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially 4 a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th 5 Cir. 2000). A properly pled complaint must provide a “short and plain statement of the claim 6 showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atlantic Corp. v. Twombley, 7 550 U.S. 544, 555 (2007). Although Rule 8 does not require detailed factual allegations, it demands 8 “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” 9 Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). 10 The court must accept as true all well-pled factual allegations contained in the complaint, but the 11 same requirement does not apply to legal conclusions. Iqbal, 129 S.Ct. at 1950. Mere recitals of the 12 elements of a cause of action, supported only by conclusory allegations, do not suffice. Id. at 1949. 13 Secondly, where the claims in the complaint have not crossed the line from plausible to conceivable, 14 the complaint should be dismissed. Twombly, 550 U.S. at 570. 15 III. 16 Instant Complaint Plaintiff’s complaint seeks relief for what appears to be alleged violations of his Fourth, Fifth, 17 and Fourteenth Amendment rights. Plaintiff seeks damages pursuant to Bivens v. Six Unknown 18 Named Agents, 403 U.S. 388, 91 S. Ct. 1999 (1971), for alleged violations of his constitutional rights. 19 In Bivens, the Supreme Court established the right to bring a lawsuit for money damages against 20 individual law enforcement officials acting under color of federal law. A Bivens action cannot be 21 brought against the United States, agencies of the United States or federal agents in their official 22 capacity. See FDIC v. Meyer, 510 U.S. 471, 486 (1994). Bivens actions against federal employees 23 are the “judicially crafted counterpart” to claims against state actors arising under 42 U.S.C. § 1983. 24 See Chavez v. I.N.S., 17 F.Supp.2d 1141, 1143 (S.D.Cal.1998). 25 Section 1983 and “the federal habeas corpus statute ... both provide access to the federal court 26 ‘for claims of unconstitutional treatment at the hands of state officials ... [but] they differ in their 27 scope and operation.” Pattillo v. Lombardo, 2017 WL 3622778, at *4 (D. Nev. Aug. 23, 2017) 28 (citing Ramirez v. Galaza, 334 F.3d 850, 854 (9th Cir. 2003)). In Heck v. Humphrey, the Supreme 3 1 Court held that a state prisoner may not maintain a § 1983 claim for damages if a judgment in favor 2 of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” 512 U.S. 477, 3 480 (1994); see also Clemons v. Williams, 2016 WL 1238229, at *2 (D. Nev. Mar. 29, 2016); Martin 4 v. Sias, 88 F.3d 774, 775 (9th Cir.1996) (applying § 1983 rationale of Heck to Bivens action). 5 Accordingly, under Heck, an action that challenges the validity of a plaintiff’s criminal conviction or 6 confinement is not cognizable unless the plaintiff can prove that his or her sentence has been 7 reversed, expunged, declared invalid, or called into question by the issuance of a writ of habeas 8 corpus. Heck, 512 U.S. at 486-87. A prisoner may challenge the validity of his arrest, prosecution, 9 and conviction by writ of habeas corpus. Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996). 10 In other words, where “a judgment in favor of the plaintiff would necessarily imply the 11 invalidity of his conviction or sentence,” then “the complaint must be dismissed unless the plaintiff 12 can demonstrate that the conviction or sentence has already been invalidated.” See Heck, 512 U.S. at 13 487. “A claim for damages bearing that relationship to a conviction or sentence that has not been so 14 invalidated is not cognizable under § 1983.” Id. at 488. See also Pattillo v. Lombardo, 2017 WL 15 3622778, at *4. An action should be allowed to proceed, however, if success on the merits will not 16 necessarily invalidate a conviction against the plaintiff. Heck, 512 U.S. at 487. 17 A. 18 Plaintiff brings suit against U.S. Attorney John Doe based on allegations that he maliciously Prosecutorial Immunity 19 prosecuted Plaintiff by “conduct[ing] hearings in matters related to the Plaintiff...” See Complaint 20 (ECF No. 1-1), pg. 2. A prosecutor is entitled to absolute immunity from a civil rights action for 21 damages when he or she performs a function that is “intimately associated with the judicial phase of 22 the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Genzler v. Longanbach, 410 23 F.3d 630, 636 (9th Cir.) (prosecutor protected by absolute immunity from liability for damages under 24 federal civil rights law when performing traditional functions of an advocate) (quoting Kalina v. 25 Fletcher, 522 U.S. 118, 131 (1997)), cert. denied, 546 U.S. 1031-32 (2005). A prosecutor is entitled 26 to absolute immunity for his or her acts in evaluating evidence assembled by investigators or police 27 and appropriate preparation for its presentation before a grand jury after a decision to seek an 28 indictment has been made. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Plaintiff’s complaint 4 1 provides only bare allegations that appear to only concern Defendant John Doe’s actions in court. 2 Therefore, Plaintiff’s allegations relate to functions intimately associated with criminal prosecution. 3 As a result, Plaintiff’s claim against U.S. Attorney John Doe must be dismissed on grounds of 4 prosecutorial immunity. Imbler, 424 U.S. 409; 28 U.S.C. § 1915A(b)(2). Consequently, Plaintiff 5 fails to state a claim upon which relief may be granted. The Court recommends Plaintiff's claim 6 against Defendant John Doe be dismissed with prejudice because it is clear from the face of the 7 complaint that the deficiencies cannot be cured with amendment. See Cato v. United States, 70 F.3d 8 1103, 1106 (9th Cir.1995). 9 10 B. Plaintiff’s Claims against Defendant Grimaldo An individual defendant is not liable on a civil rights claim unless the facts establish that 11 defendant's personal involvement in some constitutional deprivation or a causal connection between 12 the defendant's wrongful conduct and the alleged constitutional deprivation. Van Snowden v. 13 Cazares, 2015 WL 12859714, at *8 (C.D. Cal. Aug. 21, 2015) (citing Hansen v. Black, 885 F.2d 642, 14 646 (9th Cir. 1989)). Individuals have a due process right under the Fourteenth Amendment “not to 15 be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the 16 government.” Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001). To establish a due 17 process violation, a plaintiff must, at a minimum, allege either (1) that government officials continued 18 their investigation “despite the fact that they knew or should have known that [plaintiff] was 19 innocent;” or (2) “used investigative techniques that were so coercive and abusive that they knew or 20 should have known those techniques would yield false information. Cunningham v. Perez, 345 F.3d 21 802, 811 (9th Cir. 2003). 22 Evidence that a law enforcement officer or government investigator intentionally or recklessly 23 made false statements that proximately caused an individual's false arrest and prosecution can support 24 a Bivens claim for damages. See, e.g., Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (9th 25 Cir. 2002) (“government investigators may be liable for violating the Fourth Amendment when they 26 submit false and material evidence in a warrant affidavit.”); see also Blankenhorn v. City of Orange, 27 485 F.3d 463, 482 (9th Cir. 2007) (police officer who maliciously or recklessly makes false reports to 28 prosecutor may be held liable for damages incurred as proximate result of those reports); Van 5 1 2 Snowden v. Cazares, 2015 WL 12859714, at *8 (C.D. Cal. Aug. 21, 2015). To the extent that this claim is brought against Defendant Grimaldo in his individual capacity, 3 the Court will screen the sufficiency of Plaintiff’s allegations. Plaintiff appears to allege that 4 Defendant Grimaldo violated his right to due process of the law, right to fair trial, and right against 5 unreasonable search and seizure. He alleges that Defendant Grimaldo falsely testified at an 6 evidentiary hearing and Plaintiff’s jury trial that Plaintiff concealed his identity at a traffic stop. 7 Plaintiff’s allegations against Defendant Grimaldo impliedly challenges the validity of his conviction 8 and he has not established that his sentence has been reversed, expunged, declared invalid, or called 9 into question by the issuance of a writ of habeas corpus. Therefore, Plaintiff does not provide enough 10 factual basis to determine whether Plaintiff’s claims against Defendant Grimaldo are barred under 11 Heck. The Court, therefore, dismisses Plaintiff’s claims against Defendant Grimaldo with leave to 12 amend to allow Plaintiff to establish whether his conviction has been reversed, expunged, declared 13 invalid, or called into question by the issuance of a writ of habeas corpus. 14 If Plaintiff elects to proceed in this action by filing an amended complaint, he is informed that 15 the court cannot refer to a prior pleading in order to make his amended complaint complete. Local 16 Rule 15–1 requires that an amended complaint be complete in itself without reference to any prior 17 pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. 18 See Valdez-Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011); see Loux v. Rhay, 375 F.2d 55, 57 19 (9th Cir.1967). Once Plaintiff files an amended complaint, the original pleading no longer serves any 20 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and 21 the involvement of each defendant must be sufficiently alleged. Accordingly, 22 IT IS HEREBY ORDERED that Plaintiff's Application to Proceed in Forma Pauperis is 23 granted. Plaintiff shall not be required to pre-pay the full filing fee of four hundred dollars 24 ($400.00). 25 IT IS FURTHER ORDERED that Plaintiff is permitted to maintain this action to conclusion 26 without the necessity of prepayment of any additional fees or costs or the giving of 27 security therefor. This Order granting leave to proceed in forma pauperis shall not extend to the 28 issuance of subpoenas at government expense. 6 1 IT IS FURTHER ORDERED that Plaintiff’s claims against Defendant Grimaldo be 2 dismissed without prejudice and with leave to amend. Plaintiff shall have until November 17, 2017 3 to file an amended complaint correcting the noted deficiencies. 4 5 6 RECOMMENDATION IT IS HEREBY RECOMMENDED that Plaintiff’s claims against Defendant John Doe be dismissed with prejudice for failure to state a claim upon which relief can be granted. 7 NOTICE 8 Under Local Rule IB 3-2, any objection to this Report and Recommendation must be in 9 writing and filed with the Clerk of the Court within fourteen (14) days. Appeals may been waived 10 due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 11 (1985). Failure to file objections within the specified time or failure to properly address and brief the 12 objectionable issues waives the right to appeal the District Court’s order and/or appeal factual issues 13 from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. 14 Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 15 DATED this 17th day of October, 2017. 16 17 18 ______________________________________ GEORGE FOLEY, JR. United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 7

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