(PC) Lal v. United States of America

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 AZHAR LAL, No. 2:20-cv-00349 JAM DB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 UNITED STATES OF AMERICA, et al., 15 Defendants. [16] 17 Plaintiff, a state prisoner proceeding pro se, has filed an action in this court. Plaintiff 18 challenges the circumstances surrounding his extradition and prosecution. Before the court is 19 plaintiff’s amended complaint for screening (ECF No. 35), plaintiff’s motion to proceed in forma 20 pauperis (ECF No. 12), and plaintiff’s renewed motions to appoint counsel, for judicial notice, to 21 expand pages, and change of address (ECF No. 33). 22 For the reasons stated below, plaintiff’s renewed motions will be denied (ECF No. 33). It 23 will be recommended that this action be dismissed with prejudice. Plaintiff’s motion to proceed 24 in forma pauperis (ECF No. 12) will be denied as moot. 25 PLAINTIFF’S RENEWED MOTIONS 26 On March 3, 2021, plaintiff filed “motion(s) for change of address; to expand tort to 50 27 pages; for appointment of counsel and/or writ of mandate/prohibition under judicial notice.” 28 (ECF No. 29.) The undersigned ruled on these motions on April 2, 2021, denying all but the 1 change of address motion. (ECF No. 32.) On April 7, 2021, plaintiff renewed his previous 2 motions. (ECF No. 33.) Except for the first three pages, these motions are identical to plaintiff’s 3 original motions. (Id.) The additionally three pages state that plaintiff refiled these motions on 4 the grounds that “the district Judge maliciously abused his power, authority and discretion by 5 taking it upon himself to adopt, rule, and then dismiss plaintiff’s [motion(s)] with or without the 6 Magistrate Judge’s consent.” (Id. at 2.) Specifically, plaintiff claims “footnote 1” in the District 7 Judge’s March 19, 2021 order dismissed plaintiff’s original motions. (Id.) 8 Plaintiff is incorrect that the District Judge denied plaintiff’s motions in the March 19, 9 2021 order. The order does note the existence of those motions in a footnote but simply states 10 that “[these motions are] not responsive to the magistrate judge’s findings and recommendations.” 11 (ECF No. 31 at 1.) This footnote simply indicates that these documents did not appear to be 12 intended by the plaintiff as objections to the magistrate judge’s findings and recommendations. 13 There is nothing in this order indicating that plaintiff’s March 3, 2021 motions had been denied 14 by the District Judge. (See ECF No. 31.) Plaintiff’s motions were denied by the undersigned on 15 April 2, 2021. (ECF No. 33.) 16 Plaintiff’s renewed motions are duplicative of his previously denied motions. (See ECF 17 No. 29; ECF No. 33.) They do not appear to present any new facts or legal authority. (See ECF 18 No. 33 at 3-8.) Accordingly, these motions will be denied on the same grounds as the previous 19 motions. 20 FIRST AMENDED COMPLAINT – SCREENING 21 I. Legal Standards 22 The court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 24 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 25 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 26 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 27 U.S.C. § 1915A(b)(1) & (2). 28 //// 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 3 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, [5] 490 U.S. at 327 . The critical inquiry is whether a constitutional claim, however inartfully 6 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227 . Rule 8(a)(2) of 7 the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim 8 showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what 9 the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 10 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 11 However, in order to survive dismissal for failure to state a claim a complaint must 12 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 13 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, [14] 550 U.S. at 555 . In reviewing a complaint under this standard, the court must accept as true the 15 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 16 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 17 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 18 The Civil Rights Act under which this action was filed provides as follows: 19 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 20 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 21 or other proper proceeding for redress. [23] 42 U.S.C. § 1983 . The statute requires that there be an actual connection or link between the 24 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 25 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 26 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 27 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform 28 //// 1 an act which he is legally required to do that causes the deprivation of which complaint is made.” 2 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 3 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 4 their employees under a theory of respondeat superior and, therefore, when a named defendant 5 holds a supervisorial position, the causal link between him and the claimed constitutional 6 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 7 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 8 concerning the involvement of official personnel in civil rights violations are not sufficient. See 9 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 10 II. Rule 8(a) 11 a. Background 12 On May 4, 2020, the court screen plaintiff’s initial complaint pursuant to 28 U.S.C. § 13 1915A(a). (ECF No. 7.) The court found that plaintiff’s complaint, which was nearly 780 pages 14 in length including fifty pages of factual allegations, did not comply with Rule 8(a) of the Federal 15 Rules of Civil Procedure. (Id. at 4.) The court dismissed plaintiff’s complaint with leave to 16 amend. (Id.) In order to ensure compliance with the Federal Rules of Civil Procedure, the court 17 imposed a limit of twenty-five pages on the amended complaint. (Id.) 18 In the over one-year period following this order, plaintiff requested and was granted 19 several extensions of time. (See e.g., ECF Nos. 15, 16, 25, 28, 30, 32.) Plaintiff also filed 20 multiple additional motions during this period. (See e.g., ECF Nos. 19, 27, 29, 33.) Plaintiff filed 21 the First Amended Complaint (“FAC”) on July 1, 2021. (ECF No. 35.) 22 b. Discussion 23 The FAC is approximately 360 pages long including twenty-nine pages of factual 24 allegations which are typed in dense, single-spaced font. (See ECF No. 35 at 1-30.) As such, the 25 FAC does not comply with Local Rule 130(c), which requires that documents be double-spaced. 26 L.R. 130(c). More importantly, the FAC exceeds the page limitation set by the court’s May 4, 27 2020 screening order. (See ECF No. 7 at 4.) This page limitation was set to ensure that the 28 amended complaint complied with Rule 8(a) of the Federal Rule of Civil Procedure. (Id.) 1 As written, the FAC is neither short nor plain and therefore does not comply with Rule 8. 2 Hatch v. Reliance Ins. Co., 758 F.2d 409 (9th Cir. 1985), cert. denied, 474 U.S. 1021 (1985) 3 (confusing and conclusory complaint exceeding 70 pages with attachments, was subject to 4 dismissal for want of a short and plain statement of the claim); Hollis v. York, No. 1:09-cv-0463 5 OWW SMS, 2011 WL 3740811 at *1 (E.D. Cal. Aug. 24, 2011) (A 34-page complaint with 34 6 pages of exhibits “that lists multiple unrelated incidents and contains legal argument” violates 7 Rule 8); Simmons v. Akanno, No. 1:09-cv-0659 GBC PC, 2010 WL 5186690 at *3 (E.D. Cal. 8 Dec. 7, 2010) (A 33-page complaint with 53 pages of exhibits violates Rule 8); Knapp v. Cate, 9 No. 1:08-cv-1779 SKO PC, 2010 WL 3521871 at *2 (E.D. Cal. Sept. 7, 2010) (A 26-page 10 complaint with 60 pages of exhibits violates Rule 8). Accordingly, it will be recommended that 11 this complaint be dismissed. 12 III. Cause of Action 13 In the FAC, plaintiff also states that this action is “brought pursuant to 28 U.S.C. § 1350 14 & 1350(a).” (ECF No. 35.) Plaintiff has previously asserted this in several of his other previous 15 motions as well. (See e.g., ECF No. 29 at 2.) Additionally, in his objections to the court’s May 16 4, 2020 screening order, plaintiff stated that “[p]laintiff did not file an action pursuant to 42 USC 17 1983 otherwise he would have used the Eastern District Form which is provided for prisoners.” 18 (ECF No. 17 at 3) (emphasis in original). However, 28 U.S.C. § 1350 , also known as the Alien 19 Tort Statute (“ATS”), does not create a cause of action. Sosa v. Alvarez-Machain, 542 U.S. 692 , 20 713 (2004). “[T]he ATS is a jurisdictional statute creating no new causes of action.” Id. at 724 . 21 As such, plaintiff cannot bring the present action pursuant to 28 U.S.C. § 1350 . 22 Given that plaintiff asserts that he did not file this action pursuant to § 1983, plaintiff has 23 failed to state a claim for which relief can be granted. 24 IV. Heck Bar 25 Though plaintiff states that this action is not brought under § 1983, it appears it should be 26 a § 1983 claim. Even if plaintiff did intend to bring this as a § 1983 claim or amended his 27 complaint to make it a § 1983 claim, this action would be barred under Heck v. Humphrey, 512 28 U.S. 477 (1994). 1 A. Legal Standard for Heck Bar 2 In Heck, the Supreme Court held that “habeas corpus is the exclusive remedy for a state 3 prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier 4 release, even though such a claim may come within the literal terms of § 1983.” Heck, 512 U.S. 5 at 481. A plaintiff cannot maintain a § 1983 action to recover damages for “harm caused by 6 actions whose unlawfulness would render [his] conviction or sentence invalid” when his sentence 7 and conviction have not previously been reversed, expunged, declared invalid, or called into 8 question upon issuance of a writ of habeas corpus by a federal court. Id. at 486–87. The 9 Supreme Court has extended this holding to civil-rights actions in which the plaintiff seeks 10 declaratory or injunctive relief as well as damages. Edwards v. Balisok, 520 U.S. 641 , 648 11 (1997). 12 In Smith v. City of Hemet, the Ninth Circuit reiterated: “[I]f a criminal conviction arising 13 out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for 14 which section 1983 damages are sought, the 1983 action must be dismissed.” 394 F.3d 689 , 695 15 (9th Cir. 2005) (quotation omitted). “Consequently, ‘the relevant question is whether success in a 16 subsequent § 1983 suit would necessarily imply or demonstrate the invalidity of the earlier 17 conviction or sentence.’” Beets v. County of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012) 18 (quoting Heck, 512 U.S. at 487). 19 B. Analysis 20 In his complaint, plaintiff states multiple claims whose alleged unlawfulness would have 21 consequences on his criminal sentence. These include claims regarding the improper collection 22 of evidence used at trial (ECF No. 35 at 15-20), the efficacy of plaintiff’s counsel at trial (Id. at 23 20-21), and the efficacy of his counsel on appeal (Id. at 21-22). Further, plaintiff appears to 24 specifically contest whether he could be convicted of the charges against him given the offenses 25 in his extradition. (Id. at 1.) 26 Plaintiff may not maintain a § 1983 action to recover damages for “harm caused by 27 actions whose unlawfulness would render [his] conviction or sentence invalid” when his sentence 28 and conviction have not previously been reversed, expunged, declared invalid, or called into 1 question upon issuance of a writ of habeas corpus by a federal court. Heck v. Humphrey, 512 2 U.S. 477, 486-87 (1994). Thus, in situations where the plaintiff's success on the § 1983 action 3 would necessarily imply the invalidity of his underlying conviction or sentence, he must first 4 demonstrate he has received a “favorable termination” of his criminal conviction through a 5 reversal or similar court action. Id. Plaintiff has not done so. Accordingly, plaintiff’s claims are 6 barred by Heck. 512 U.S. at 489 (until and unless favorable termination of the conviction or 7 sentence occurs, no cause of action under section 1983 exists). As such, it will be recommended 8 that the complaint be dismissed as plaintiff has failed to state an appropriate cause of action and 9 even if plaintiff intended to state claims under § 1983 they would be barred. 10 V. No Leave to Amend 11 If the court finds that a complaint should be dismissed for failure to state a claim, the court 12 has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122 , 112613 30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that the 14 defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130-31 ; see 15 also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given 16 leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely 17 clear that the deficiencies of the complaint could not be cured by amendment.”) (citing Noll v. 18 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). However, if, after careful consideration, it is clear 19 that a complaint cannot be cured by amendment, the Court may dismiss without leave to amend. 20 Cato, 70 F.3d at 1005-06 . 21 Plaintiff has not stated an appropriate cause of action for this case. Even if plaintiff 22 intended to bring the present action under § 1983, it would be more appropriately raised, if at all, 23 in a habeas proceeding given that it represents a challenge to his conviction. However, plaintiff 24 previously filed a federal habeas petition challenging his conviction which was denied. Lal v. 25 Roe, 2002 WL 31356505 (9th Cir. 2002). Plaintiff also filed at least one other federal habeas 26 petition which was dismissed as second or successive to plaintiff’s previously denied petition. 27 Lal v. Biter, 2:15-cv-01830-EFB (E.D. Cal.) It appears that plaintiff has filed this action in order 28 to seek relief now that he has exhausted the avenue of federal habeas. Given this, as well as the 1 fact that plaintiff seeks damages, it would not be appropriate to convert the present action to a 2 habeas petition. 3 The undersigned finds that, as set forth above, plaintiff has failed to state a claim for 4 which relief can be granted. Additionally, plaintiff’s potential §1983 claims are barred by Heck. 5 The court finds it inappropriate to convert the complaint to a habeas petition. See Blueford v. 6 Prunty, 108 F.3d 251, 255 (9th Cir. 1997) (treating defective § 1983 claim as a habeas petition 7 could prevent consideration of other habeas claims prisoner may have; best course is dismissal of 8 the § 1983 claims without prejudice) (citing Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th 9 Cir. 1995)). Accordingly, it will be recommended that this action be dismissed with prejudice. 10 IN FORMA PAUPERIS 11 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 12 1915(a). (ECF No. 7.) However, as it will be recommended that this action be dismissed without 13 leave to amend, plaintiff’s motion will be denied as moot. Should these findings and 14 recommendations not be adopted, plaintiff will be permitted to file a renewed motion to proceed 15 in forma pauperis. 16 CONCLUSION 17 For the reasons stated above, IT IS HEREBY ORDERED as follows: 18 1. Plaintiff’s motions to appoint counsel, for judicial notice, to expand pages, and for 19 change of address (ECF No. 33) are denied. 20 2. Plaintiff’s motion to proceed in forma pauperis (ECF No. 12) is denied as moot. 21 Additionally, IT IS RECOMMENDED that this action be dismissed with prejudice for failure to 22 state a claim under 42 U.S.C. § 1983 . 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(l). Within twenty-one days 25 after being served with these findings and recommendations, plaintiff may file written objections 26 with the court and serve a copy on all parties. Such a document should be captioned “Objections 27 to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 28 //// 1 objections within the specified time may waive the right to appeal the District Court’s order. 2 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: January 3, 2022 [7] 8 DB:14 DB/DB Prisoner Inbox/Civil Rights/S/lal0349.fr.dism