Dorado v. Crumb

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 DANIEL DORADO, Case No.: 3:20-cv-1936-JAH-LL CDCR #BN 7728, [12] ORDER DISMISSING SECOND Plaintiff, 13 AMENDED COMPLAINT v. [14] (ECF No. 23) [15] CATHERINE CRUMB; JOHN 16 SULLIVAN; JESSICA COTTO; CITY OF SAN DIEGO; COUNTY OF SAN [17] DIEGO; SAN DIEGO SHERIFF, 18 Defendants. [20] 21 Daniel Dorado (“Plaintiff”), currently incarcerated at Pleasant Valley State Prison, 22 is proceeding pro se in this civil rights action pursuant to 42 U.S.C. Section 1983 . (See 23 Compl., ECF No. 1.) The Court previously dismissed Plaintiff’s First Amended Complaint 24 (ECF No. 11) for failure to state a claim pursuant to 28 U.S.C. Section 1915A(b) and 25 granted leave to amend. (See ECF No. 11, at 9-10.) After being granted an extension of 26 time, Plaintiff timely filed a Second Amended Complaint (ECF No. 23, SAC.) 27 / / / 28 / / / 1 I. Screening pursuant to 28 U.S.C. Section 1915A 2 A. Standard of Review 3 The Court must conduct an initial review of Plaintiff’s SAC pursuant to 28 U.S.C. 4 Section 1915A because he is a prisoner and seeks “redress from a governmental entity or 5 officer or employee of a governmental entity.” See 28 U.S.C. § 1915A(a). 6 Section 1915A “mandates early review—‘before docketing [] or [] as soon as 7 practicable after docketing’—for all complaints ‘in which a prisoner seeks redress from a 8 governmental entity or officer or employee of a governmental entity.’” Chavez v. 9 Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016). The mandatory screening provisions of 10 Section 1915A apply to all prisoners, no matter their fee status, who bring suit against a 11 governmental entity, officer, or employee. See, e.g., Resnick v. Hayes, 213 F.3d 443 , 44612 47 (9th Cir. 2000). “On review, the court shall . . . dismiss the complaint, or any portion 13 of the complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon which 14 relief may be granted; or (2) seeks monetary relief from a defendant who is immune from 15 such relief.” Olivas v. Nevada ex rel. Dep’t of Corrs., 856 F.3d 1281, 1283 (9th Cir. 2017) 16 (quoting 28 U.S.C. § 1915A(b)). 17 B. Rule 8 18 “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short 19 and plain statement of the claim,” FED. R. CIV. P. 8(a)(2), and that “each allegation must 20 be simple, concise, and direct.” FED. R. CIV. P. 8(d)(1). See Iqbal, 556 U.S. at 677-78. In 21 addition to the grounds for sua sponte dismissal set out in § 1915(e)(2)(B), the district court 22 may also dismiss a complaint for failure to comply with Rule 8 if it fails to provide the 23 defendant fair notice of the wrongs allegedly committed. See McHenry v. Renne, 84 F.3d 24 1172, 1178–80 (9th Cir. 1996) (upholding Rule 8(a) dismissal of complaint that was 25 “argumentative, prolix, replete with redundancy, and largely irrelevant”); Cafasso, United 26 States ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1059 (9th Cir. 2011) 27 (citing cases upholding Rule 8 dismissals where pleadings were “verbose,” “confusing,” 28 “distracting, ambiguous, and unintelligible,” “highly repetitious,” and comprised of 1 “incomprehensible rambling,” while noting that “[o]ur district courts are busy enough 2 without having to penetrate a tome approaching the magnitude of War and Peace to discern 3 a plaintiff’s claims and allegations.”). 4 Here, Plaintiff’s SAC is fifty-eight pages long and contains meandering descriptions 5 of his apparent arrest, preliminary hearing, criminal trial, and ultimate conviction. It mostly 6 contains legal arguments relating to the alleged lack of probable cause for his arrest, along 7 with the alleged misconduct by the Defendants, judicial officers and attorneys involved in 8 his criminal proceedings and purported insufficient evidence to convict him of any criminal 9 charges. Even though pro se pleadings are entitled to liberal construction, that does not 10 exempt Plaintiff from the requirement that his SAC provide the Court and Defendants with 11 fair notice of his factual and legal claims. Indeed, as the Ninth Circuit has emphasized, “it 12 is not the district court’s job to stitch together cognizable claims for relief from [a] wholly 13 deficient pleading.” See Hearnes v. San Bernardino Police Dep’t, 530 F.3d 1124 , 1132 14 (9th Cir. 2008); see also Morrison v. United States, 270 F. App’x 514, 515 (9th Cir. 2008) 15 (affirming dismissal under Rule 8 of a complaint “contain[ing] a confusing array of vague 16 and underdeveloped allegations . . . .”). 17 The Court finds Plaintiff’s SAC violates Rule 8 of the FRCP. Moreover, Plaintiff’s 18 SAC violates the Court’s local rule that provides, in part, that “[c]omplaints by prisoners 19 under the Civil Rights Act, 42 U.S.C. § 1983” are to be written on forms “supplied by the 20 court” and “additional pages not to exceed fifteen (15) in number.” S.D. Cal. CivLr 8.2(a). 21 Accordingly, the Court DISMISSES the entire SAC on Rule 8 grounds, and for violating 22 the Court’s local rules. 23 C. Analysis 24 To state a claim under 42 U.S.C. Section 1983 , a plaintiff must allege two essential 25 elements: (1) that a right secured by the Constitution or laws of the United States was 26 violated, and (2) that the alleged violation was committed by a person acting under the 27 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030 , 28 1035-36 (9th Cir. 2015). 1 D. Heck Bar 2 Plaintiff states that this matter “is a case then stems from my criminal case in San 3 Diego, CA, People v. Dorado, SCD 276163. (SAC at 5.) Plaintiff was convicted and 4 sentenced in his criminal matter and is “currently appealing [his] criminal case at this time. 5 (Id. at 7.) In his lengthy SAC, Plaintiff alleges that Defendants obtained an arrest warrant 6 by “falsifying the information to obtain the arrest warrant.” (Id. at 8.) He claims that 7 Defendants committed “prosecutorial misconduct” during his preliminary hearing and 8 “throughout the trial.” (Id.) Plaintiff also claims Defendants gave “hearsay testimony” 9 against him. (Id. at 10.) Plaintiff contends that the “case should have been dismissed at 10 the preliminary hearing; it was not a prima facie case, but the judge would not allow a 11 dismissal of the charges.” (Id. at 13-14.) Plaintiff claims the judge gave him the “harsh” 12 sentence of forty years because he did not “want to argue” with the prosecutor. (Id. at 18.) 13 He also claims that there was “ineffective attorney participation” by his defense counsel. 14 (Id. at 20.) Plaintiff is seeking monetary damages in the amount of $110,000,0000. (Id. at 15 58.) 16 There are two methods for state prisoners to raise complaints related to their 17 imprisonment in federal court. See Muhammad v. Close, 540 U.S. 749, 750 (2004) 18 (“Federal law opens two main avenues to relief on complaints related to imprisonment....”) 19 (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). In general, claims of constitutional 20 violations related to the “circumstances” of a prisoner’s confinement must be brought in a 21 civil rights action under § 1983, see id., while constitutional challenges to the validity or 22 duration of a prisoner’s confinement which seek either “immediate release from prison” or 23 the “shortening of [a state prison] term” must be raised in a petition for federal habeas 24 corpus under 28 U.S.C. § 2254 , or through appropriate state relief. Wilkinson v. Dotson, [25] 544 U.S. 74, 78-79 (2005) (citations and internal quotation marks omitted); Nettles v. 26 Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc) (“The Court has long held that habeas 27 is the exclusive vehicle for claims brought by state prisoners that fall within the core of 28 habeas, and such claims may not be brought in a § 1983 action.”) (citing Dotson, 544 U.S. 1 at 81-82 ). 2 Here, because Plaintiff seeks damages based on claims that he has been unlawfully 3 convicted, sentenced, and/or incarcerated, his suit is subject to dismissal because he may 4 not pursue such claims in a civil rights action pursuant to 42 U.S.C. § 1983 without first 5 showing his conviction in San Diego Superior Court Case No. SCD 276163 has already 6 been invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). 7 In Heck, the Supreme Court held: 8 in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would [9] render a conviction or sentence invalid, a § 1983 plaintiff must prove that the 10 conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such [11] determination, or called into question by a federal court’s issuance of a writ 12 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 [13] cognizable under § 1983. [14] Id. at 486-87; Washington v. Los Angeles County Sheriff’s Dep’t, 833 F.3d 1048 , 1054-55 [15] (9th Cir. 2016). [16] “Suits challenging the validity of the prisoner’s continued incarceration lie within [17] ‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state prisoner [18] who is making a constitutional challenge to the conditions of his prison life, but not to the [19] fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003) [20] (emphasis added), quoting Preiser, 411 U.S. at 498-99 (holding that a writ of habeas corpus [21] is “explicitly and historically designed” to provide a state prisoner with the “exclusive” [22] means to “attack the validity of his confinement” in federal court). [23] Because Plaintiff seeks damages based on allegations that he has not received a fair [24] trial, he may not proceed pursuant to § 1983, unless and until that conviction has been [25] invalidated. Heck, 512 U.S. at 486-87 ; Ramirez, 334 F.3d at 855-56 (“Absent such a [26] showing, ‘[e]ven a prisoner who has fully exhausted available state remedies has no cause [27] of action under § 1983.’”), quoting Heck, 512 U.S. at 489 . An award of damages based on [28] 1 that conviction would necessarily imply its constitutional validity and consequently affect 2 the duration of his confinement. See Heck, 512 U.S. at 487 ; see also Pattillo v. Lombardo, 3 No. 2:17-CV-01849-JAD-VCF, 2017 WL 3622778 , at *4 (D. Nev. Aug. 23, 2017) (“When 4 a prisoner challenges the legality or duration of his custody, raises a constitutional 5 challenge which could entitle him to an earlier release … or seeks damages for purported 6 deficiencies in his state court criminal case, which effected a conviction or lengthier 7 sentence, his sole federal remedy is the writ of habeas corpus.”). 8 Because Plaintiff does not claim to have already invalidated the conviction which 9 forms the basis of his suit by way of direct appeal, executive order, or through the issuance 10 of either a state or federal court writ of habeas corpus, Heck, 512 U.S. at 487 , his SAC must 11 be dismissed sua sponte and in its entirety for failing to state a claim upon which § 1983 12 relief can be granted pursuant to 28 U.S.C. § 1915 (e)(2)(B) and § 1915A(b). See Phillipi 13 v. Does, No. CIV. 11-2612 DMS RBB, 2011 WL 6400303 , at *2 (S.D. Cal. Dec. 20, 2011) 14 (sua sponte dismissing civil rights action pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A 15 because “habeas corpus is the exclusive federal remedy whenever the claim for damages 16 depends on a determination that … the sentence currently being served is 17 unconstitutionally long.”) (citing Edwards v. Balisok, 520 U.S. 641, 643-44 (1997); Heck, 18 512 U.S. at 486–87; Preiser, 411 U.S. at 500 ); Lopez, 203 F.3d at 1126-27; Wilhelm, 680 19 F.3d at 1121. 20 3. Judicial, Prosecutorial & Witness Immunity 21 To the extent Plaintiff seeks damages against Judge Rodgers for the rulings that he 22 made in Plaintiff’s criminal trial, his claims are legally frivolous, because “[j]udges are 23 absolutely immune from damage liability for acts performed in their official capacities.” 24 Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc) (“A judge lacks immunity 25 where [s]he acts in the clear absence of all jurisdiction, or performs an act that is not judicial 26 in nature.”) (internal quotation marks and citations omitted); Pierson v. Ray, 386 U.S. 547 , 27 553-55 (1967); Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001). “Issuing 28 orders, setting schedules, and remanding criminal defendants into custody” are all acts 1 performed within a trial judge’s official capacity. Thomas v. Shah, No. 5:18-CV-021932 AG (SHK), 2018 WL 5734593 , at *2 (C.D. Cal. Oct. 31, 2018); see also Mainez v. Gore, 3 No. 3:17-CV-01359-JAH-JLB, 2017 WL 4005269 , at *5 (S.D. Cal. Sept. 11, 2017) 4 (finding § 1983 claims for monetary damages against Superior Court Judge subject to sua 5 sponte dismissal as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B)(iii) & 1915A(b)). 6 To the extent Plaintiff claims Assistant District Attorney Jessica Coto also violated 7 his constitutional rights by having his “religious beliefs brought against [him]” in her 8 closing argument” and committing “prosecutorial misconduct,” see SAC at 21-22, his SAC 9 must also be dismissed pursuant to 28 U.S.C. § 1915 (e)(2)(B)(iii) & 1915A(b) because 10 Coto is entitled to absolute prosecutorial immunity. See Van de Kamp v. Goldstein, 555 11 U.S. 335, 341 (2009) (state prosecutors are entitled to absolute prosecutorial immunity for 12 acts taken in their official capacity); Imbler v. Pachtman, 424 U.S. 409, 427, 430-31 (1976) 13 (holding prosecutors absolutely immune from civil suits for damages under § 1983 for 14 initiating criminal prosecutions and presenting cases); Olsen v. Idaho State Bd. of 15 Medicine, 363 F.3d 916 , 922 (9th Cir. 2004) (“Absolute immunity is generally accorded to 16 judges and prosecutors functioning in their official capacities”); Jackson v. Arizona, 885 17 F.2d 639, 641 (9th Cir. 1989) (finding claim against prosecutors with clear immunity 18 legally frivolous within the meaning of section 1915) (citation omitted). 19 To the extent Plaintiff also seeks damages against Katherine Crumb and John 20 Sullivan, based on claims that they offered “hearsay testimony,” see SAC at 19, his SAC 21 must also be dismissed on immunity grounds pursuant to 28 U.S.C. § 1915 (e)(2)(B)(iii) 22 and § 1915A(b)(2); see Meyers v. Contra Costa Cty. Dep’t of Soc. Servs., 812 F.2d 1154 , 23 1156 (9th Cir. 1987) (“[W]itnesses are immune from liability [under § 1983] for their 24 testimony”). “Witnesses, including police witnesses, are immune from liability for their 25 testimony in earlier proceedings even if they committed perjury.” Paine v. City of Lompoc, [26] 265 F.3d 975, 981 (9th Cir. 2001) (citing Briscoe v. LaHue, 460 U.S. 325, 345 , 103 S. Ct. 27 1108, 75 L.Ed. 2d 96 (1983) ). 28 / / / 1 E. Monell Liability 2 To the extent that Plaintiff names the City and County of San Diego as Defendants, 3 he fails to state a claim upon which § 1983 relief may be granted. A municipal entity may 4 be held liable under § 1983 only if Plaintiff alleges facts sufficient to plausibly show that 5 he was deprived of a constitutional right by individually identified employees who acted 6 pursuant to the municipality’s policy or custom. Mt. Healthy City Sch. Dist. Bd. of Ed. v. 7 Doyle, 429 U.S. 274, 280 (1977); Monell v. Dep’t of Social Servs, 436 U.S. 658 , 691 8 (1978); Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008). Neither 9 the City nor the County of San Diego may be held vicariously liable under § 1983 simply 10 because one of its employees is alleged to have acted wrongfully. See Board of Cty. 11 Comm’rs. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S. at 691 (“[A] municipality 12 cannot be held liable solely because it employs a tortfeasor.”); Jackson v. Barnes, 749 F.3d 13 755, 762 (9th Cir. 2014). Instead, the municipality may be held liable “when execution of 14 a government’s policy or custom ... inflicts [a constitutional] injury.” Monell, 436 U.S. at 15 694; Los Angeles Cty., Cal. v. Humphries, 562 U.S. 29 , 36 (2010). Plaintiff’s SAC is 16 devoid of facts that would support a claim of municipal liability as to either the City or 17 County of San Diego. 18 F. San Diego Sheriff -- Individual Liability 19 While the San Diego County Sheriff is a “person” subject to suit under § 1983, there 20 are no specific factual allegations as to this Defendant in Plaintiff’s SAC. These types of 21 broad and conclusory allegations fail to plausibly show how, or to what extent, the San 22 Diego County Sheriff may be held individually liable for any constitutional injury. See 23 Iqbal, 556 U.S. at 676-77; Jones v. Comm’ty Redev. Agency of City of Los Angeles, 733 24 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least some degree 25 of particularity overt acts which defendants engaged in” in order to state a claim). As 26 pleaded, Plaintiff plainly seeks to hold the San Diego County Sheriff liable for the acts of 27 their subordinates. But “vicarious liability is inapplicable to … § 1983 suits.” Iqbal, 556 28 U.S. at 676. Instead, “Plaintiff must plead that each Government-official defendant, 1 through [his] own individual actions, has violated the Constitution” in order to plead a 2 plausible claim for relief. Id.; see also Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 3 2013) (supervisor may be held liable under §1983 only if there is “a sufficient causal 4 connection between the supervisor’s wrongful conduct and the constitutional violation”) 5 (citations and internal quotation marks omitted); Fayle v. Stapley, 607 F.2d 858, 862 (9th 6 Cir. 1979) (when a named defendant holds a supervisorial position, the causal link between 7 the defendant and the claimed constitutional violation must be specifically alleged). 8 G. Leave to Amend 9 Finally, while the Court would normally grant Plaintiff leave to amend in light of his 10 pro se status, it concludes that doing so in this case would be futile. See Lopez, 203 F.3d at 11 1127; Schmier v. U.S. Court of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 12 2002) (recognizing “[f]utility of amendment” as a proper basis for dismissal without leave 13 to amend). 14 Amendment is futile because even if Plaintiff could somehow allege facts to show 15 Defendants violated his constitutional rights during the course of his criminal proceedings 16 in San Diego Superior Court Case No. CD276163, and include facts to suggest the named 17 Defendants could be liable for damages under § 1983, he still could not proceed because 18 he has yet to invalidate his conviction and/or sentence via direct appeal or through the 19 issuance of a federal writ of habeas corpus. See Heck, 512 U.S. at 486-87 . 20 IV. Conclusion and Orders 21 For the reasons discussed, the Court: 22 1) DISMISSES Plaintiff’s SAC as frivolous, for failing to state a claim, and for 23 seeking damages from defendants who are absolutely immune pursuant to 28 U.S.C. 24 § 1915(e)(2)(B) and § 1915A(b) without prejudice,1 but without leave to amend; [26] 27 1 See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (court should dismiss claims barred by Heck without prejudice “so that [the plaintiff] may reassert his claims if [28] 1 2) CERTIFIES that an IFP appeal from this Order would be frivolous and 2 ||therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915 (a)(3). See 3 || Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 4 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal 5 || would not be frivolous); and 6 3) DIRECTS the Clerk of Court to enter a final judgment of dismissal and to 7 || close the file. [9] 10 || Dated: September 23, 2021 VU 11 on. John A. Houston 2 United States District Judge [25] 27 || FMO(E), 2017 WL 6210802 , at *4 (C.D. Cal. Nov. 1, 2017), report and recommendation 28 adopted, No. CV 17-4615-FMO(E), 2017 WL 6209818 (C.D. Cal. Dec. 7, 2017). 10 ee □□