Rosenthal v. Lewis County

[7] UNITED STATES DISTRICT COURT [8] WESTERN DISTRICT OF WASHINGTON AT TACOMA [9] 10 ZACHARY R. ROSENTHAL, CASE NO. 3:24-cv-05162-RSM-GJL 11 Plaintiff, v. SHOW CAUSE ORDER [12] LEWIS COUNTY , et al., [13] Defendants. [14] 15 This prisoner civil rights action filed pursuant to 42 U.S.C. § 1983 has been referred to 16 United States Magistrate Judge Grady J. Leupold. Plaintiff Zachary R. Rosenthal, proceeding pro 17 se, filed a motion to proceed in this action In Forma Pauperis (“IFP”) (Dkt. 1) and a proposed 18 civil rights Complaint (Dkt. 1-1). Upon review, the Court DEFERS decision on the IFP Motion, 19 DECLINES to serve the proposed Complaint, and ORDERS Plaintiff to SHOW CAUSE why 20 his claims should not be DISMISSED for failure to state a claim on or before April 8, 2024. 21 I. BACKGROUND 22 Plaintiff’s claims and factual allegations arise out of two simultaneous state-court 23 prosecutions before the Lewis County Superior Court (“Superior Court”) in mid-to-late 2023. [24] 1 Dkt. 1-1. Plaintiff alleges that there were excessive delays in appointing counsel to aid him in 2 those prosecutions, which caused him mental, emotional, and financial stress. Id. at 4–5. 3 After defense counsel was appointed, Plaintiff claims that a Superior Court policy of 4 holding virtual hearings deprived him of meaningful assistance of counsel at a critical stage of 5 his prosecution. Id. at 6–7. In particular, Plaintiff complains that his preliminary hearing was 6 held virtually, which forced him to confer with his attorney in front of everyone present at the 7 virtual hearing. Id. at 7 . Plaintiff states that the inability to have a private conversation with his 8 attorney prejudiced his case and caused him mental and emotional suffering. Id. 9 As relief, Plaintiff requests an investigation into the Superior Court’s alleged policy of 10 holding virtual hearings that hinder private communications between defendants and their 11 attorneys and $1.25 million in compensatory damages. Dkt. Id. at 8 . 12 II. LEGAL STANDARD 13 Under the Prison Litigation Reform Act of 1996, the Court must screen complaints 14 brought by prisoners seeking relief against a governmental entity or officer or employee of a 15 governmental entity. 28 U.S.C. § 1915A(a). The Court must “dismiss the complaint, or any 16 portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to state a claim 17 upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune 18 from such relief.” 28 U.S.C. § 1915A(b). See also 28 U.S.C. §1915 (e)(2)(B); Barren v. 19 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Dismissal on these grounds counts as a 20 “strike” under 28 U.S.C. § 1915 (g). 21 To sustain a 42 U.S.C. § 1983 claim, Plaintiff must show that he suffered a violation of 22 rights protected by the Constitution or created by federal statute, and that the violation was 23 proximately caused by a person acting under color of state or federal law. West v. Atkins, 487 [24] 1 U.S. 42 , 48 (1988); Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Plaintiff must 2 provide more than conclusory allegations; he must set forth specific, plausible facts to support 3 his claims. Ashcroft v. Iqbal, 556 U.S. 662 , 678–83 (2009). 4 After informing a pro se litigant of any pleading deficiencies, a court must generally 5 grant leave to file an amended complaint if there is a possibility the pleading deficiencies may be 6 cured through amendment. Ferdik v. Bonzelet, 963 F.2d 1258 , 1261 (9th Cir.1992) However, if 7 the claims put forth in the complaint lack any arguable substance in law or fact, then the 8 complaint must be dismissed as frivolous. 28 U.S.C. § 1915A(b); see Akhtar v. Mesa, 698 F.3d 9 1202, 1212 (9th Cir. 2012) (“A district court should not dismiss a pro se complaint without leave 10 to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured 11 by amendment.’”) (quoting Schucker v. Rockwood, 846 F.2d 1202 , 1203–04 (9th Cir. 1988)). 12 III. DISCUSSION 13 Plaintiff brings two separate, but related, claims. First, he alleges that his Sixth 14 Amendment right to counsel was violated through excessive delays in appointing counsel to 15 assist in his state-court prosecutions. Dkt. 1-1, at 4–5. Second, he alleges that his constitutional 16 right to counsel was further violated when he was prevented from privately conferring with his 17 attorney during a critical stage of his case. Id. at 6–8. Upon review, the Court finds that both 18 claims are likely barred by Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477 , 487 19 (1994). 20 A. Plaintiff’s Claims are Likely Barred by the Heck Doctrine 21 A civil rights complaint under § 1983 cannot proceed when “a judgment in favor of the 22 plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the 23 complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence [24] 1 has already been invalidated.” Heck, 512 U.S. at 487 . This is, in part, because the proper 2 mechanism for obtaining federal judicial review of a state-court conviction is not a § 1983 3 action, but rather a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 after 4 state judicial remedies are exhausted. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). 5 Even where, as here, a civil-rights plaintiff merely wishes to pursue damages and does 6 not seek to challenge the legality of his conviction, Heck still requires the Court to consider 7 whether a favorable decision would call into question the validity of his state-court conviction. 8 Thus, “[t]he critical question under Heck is a simple one: Would success on the plaintiff’s § 1983 9 claim ‘necessarily imply’ that his conviction was invalid?” Byrd v. Phoenix Police Dep't, 885 10 F.3d 639, 643 (9th Cir. 2018) (quoting Heck, 512 U.S. at 487 ). 11 Here, the answer to that question is very likely “yes.” Once a criminal prosecution has 12 begun, the Sixth Amendment requires that counsel “be appointed within a reasonable time…to 13 allow for adequate representation at any critical stage before trial, as well as at trial itself.” 14 Rothgery v. Gillespie County, 554 U.S. 191, 212 (2008). Upon a showing of prejudice, 15 deprivation of the assistance of counsel at a critical stage (e.g., a preliminary hearing) requires 16 “automatic reversal” of the resulting conviction. United States v. Ehmer, 87 F.4th 1073 , 1105 17 (9th Cir. 2023). In fact, Plaintiff himself identifies a case in which, on similar facts to those 18 alleged here, the inability to privately confer with counsel at a virtual preliminary hearing and 19 other critical stages resulted in a criminal conviction being overturned. Dkt. 1-1, at 6 (citing 20 Bragg v. State, 536 P.3d 1176, 1186 (Wash. Ct. App. 2023) (“We reverse [defendant]’s 21 convictions and remand this matter to the trial court for a new trial where [he] has the 22 meaningful assistance of counsel throughout each critical stage proceeding.”).) Because [24] 1 Plaintiff’s § 1983 claims, if successful, would call into question whether his conviction must be 2 reversed, the Court finds they are likely barred by the Heck doctrine. 3 Accordingly, Plaintiff must show cause why the Court should not recommend dismissal 4 of his proposed Complaint as barred under Heck. Alternatively, Plaintiff may voluntarily dismiss 5 this action and, instead, file a petition for a writ of habeas corpus after exhausting his state court 6 remedies—if at any point during that process Plaintiff’s conviction is invalidated, only then 7 should he refile this action. 8 B. Additional Deficiencies 9 The Court briefly notes that the Complaint contains other deficiencies. For example, 10 Lewis County is named as a defendant, but Plaintiff alleges no actions that are attributable to this 11 defendant. Rather, Plaintiff only complains about actions taken by the Superior Court and its 12 employees—as a state entity, the Superior Court’s actions (and those of its employees) are 13 attributable to the State of Washington, not the county in which it sits. Penry v. Thurston Cty., 89 14 F. App’x 619, 620 (9th Cir. 2004) (explaining that the Superior Courts of Washington are state 15 entities). 16 For this same reason, the Superior Court is not a “person” subject to § 1983 liability. Will 17 v. Michigan Dep’t of State Police, 491 U.S. 58, 61 (1989) (state entities are not “persons” under 18 42 U.S.C § 1983). Furthermore, Plaintiff’s claims for damages against the Superior Court and its 19 employee are barred by the Eleventh Amendment. See Penry, 89 F. App’x at 620; Prod. & 20 Leasing, Ltd. v. Hotel Conquistador, Inc., 709 F.2d 21, 21 (9th Cir. 1983). Nevertheless, because 21 Plaintiff’s claims are likely barred by Heck v. Humphrey, the Court will not address these other 22 deficiencies in detail unless and until Plaintiff is able to show cause why his claims are not Heck 23 barred. [24] 1 IV. CONCLUSION 2 Due to the deficiencies described above, the Court declines to serve the proposed 3 Complaint (Dkt. 1-1) and, instead, Plaintiff is ORDERED to SHOW CAUSE as to why his 4 Complaint should not be dismissed as Heck barred. If Plaintiff fails to respond to this order on or 5 before April 8, 2024, the undersigned will recommend DISMISSAL of this action pursuant to [6] 28 U.S.C. § 1915 . Alternatively, Plaintiff may choose to voluntarily dismiss this action before 7 that date. 8 The Clerk of Court is DIRECTED to renote the IFP Motion (Dkt. 1) for consideration on 9 April 8, 2024. 10 Dated this 18th day of March, 2024. [11] A [12] 13 Grady J. Leupold United States Magistrate Judge