Opinion
No. 2:14-cv-0902 AC P
07-23-2014
TIMOTHY SUDDETH, Plaintiff, v. ADAM WEINER, et al., Defendants.
ORDER
Plaintiff, an El Dorado County inmate, purports to seek relief pursuant to 42 U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. Plaintiff appears to be a civil detainee at the county jail awaiting judicial proceedings regarding his status as a sexually violent predator pursuant to California's Sexually Violent Predators Act, Welf. & Inst.Code 6600, et seq. See Complaint. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has submitted to the jurisdiction of the undersigned. ECF No. 5.
A party commencing a civil action, suit or proceeding in a district court of the United States, except a petition for writ of habeas corpus, is required to pay the statutory filing fee of $350.00. 28 U.S.C. §§ 1914(a), 1915(b)(1). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir.1999). However, "[u]nlike other indigent litigants, prisoners proceeding in forma pauperis must pay the full amount of filing fees in civil actions and appeals pursuant to the PLRA [Prison Litigation Reform Act]." Agyeman v. INS, 296 F.3d 871, 886 (9th Cir.2002). Under the PLRA, a prisoner is defined as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 28 U.S.C. § 1915(h). On the other hand, a "civil detainee" is not a "prisoner" within the meaning of the PLRA. Andrews v. King, 398 F.3d 1113, 1122 (9th Cir.2005); Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000). Plaintiff has submitted an affidavit sufficient to warrant granting him in forma pauperis status.
Although plaintiff neglected to date and sign his affidavit, he did submit a certified statement of his jail trust account showing his lack of financial assets, which he, as a civil detainee, was not required to do. Page v. Torrey, 201 F.3d at 1140 (holding one civilly committed as a SVP is required neither to provide a prisoner trust fund account statement nor to exhaust administrative remedies).
A complaint filed by an individual proceeding IFP is subject to sua sponte dismissal to the extent it contains claims which are "frivolous or malicious" or which "fail[] to state a claim upon which relief may be granted, or seek[] monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir.2001) (per curiam) ("the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners"); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (en banc) ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.").
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more. . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-35 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421(1969).
Plaintiff brings this action against the following whom he names as defendants: his court-appointed counsel, Adam Weiner, and the County of El Dorado, more specifically, the Public Defender's Office of the County of El Dorado, as well as the District Attorney, Mike Atwell, Vern Pierson and Deputy District Attorney Dale Gomes. Complaint at 2. By way of this putative complaint, plaintiff asks the court for "an immediate stay of all proceedings" of his case before the state court. Id. at 3. He seeks the removal of Adam Weiner as his counsel, "would like" the El Dorado County District Attorney's Office removed from his case, asks that the proceedings be moved to another county and asks for an "undisclosed amount" for the "pain, suffering and mental anguish" he claims the County of El Dorado has subjected him too. Complaint, ECF No. 1 at 3.
Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. 1979, as amended, 42 U.S.C. 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500, [](1973); requests for relief turning on circumstances ofMuhammad v. Close, 540 U.S.749, 750 (2004) (per curiam).
confinement may be presented in a § 1983 action."
In this case plaintiff neither challenges the conditions of his jail confinement nor does he appear to be challenging the validity of his current confinement or its duration predicated on a prior civil commitment proceeding. Rather, he seeks to challenge the validity of the civil commitment proceedings he is evidently presently facing. More precisely, he asks this court to forestall these proceedings, both in his complaint and in a subsequent filing which seeks a temporary injunction. ECF Nos. 1, 6. He asks that the upcoming civil commitment proceedings be move to a different county. Id. He alleges that the El Dorado County Public Defender's Office and his subsequently appointed counsel, Adam Weiner, have shown "bias" and "prejudice" with respect to SVP and sex cases in general." ECF No. 1 at 4. He also accuses El Dorado County Deputy D.A. Dale Gomes of conspiring with the aforementioned to deny plaintiff due process and a fair trial. Id.
As noted, plaintiff is not herein challenging the conditions of his confinement; therefore, this action cannot properly proceed under § 1983. Moreover, his claims of conspiracy are vague and unsupported by material facts. Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir.1989) (citing Fonda v. Gray, 707 F.2d 435 (9th Cir. 1983)); Lockary v. Kayfetz, 587 F. Supp. 631, 639 (N. D. Cal. 1984) (conspiracy allegations must be supported by material facts and not be merely conclusory statements). In addition, in order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) defendant Weiner or the Public Defender's Office was acting under color of state law at the time the act complained of was committed; and (2) the defendants' conduct deprived plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 27, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Public defenders do not act under color of state law for purposes of § 1983. Polk County v. Dodson, 454 U.S. 312, 325 (1981).
As noted, an action under § 1983 is not the appropriate vehicle in this instance. Moreover, even if plaintiff were proceeding by the appropriate path, federal courts must abstain from intervening in pending or ongoing state court proceedings absent factors not presented here. See Younger v. Harris, 401 U.S. 37, 45, 54 (1971) (federal courts may enjoin state officers from "instituting criminal actions" only in extraordinary circumstances "where the danger of irreparable loss is both great and immediate"). "Younger abstention is a 'circumscribed exception to mandatory federal jurisdiction,' which applies when there is a pending state proceeding that implicates important state interests and provides the federal plaintiff with an opportunity to raise federal claims." Baffert v. California Horse Racing Bd., 332 F.3d 613, 617 (9th Cir. 2003) (internal citation/quotation marks omitted).
The Supreme Court has extended the application of Younger to civil proceedings, holding that abstention is required so long as the state proceedings: (1) are ongoing; (2) implicate 'important state interests'; and (3) provide an adequate opportunity to raise federal questions." Potrero Hills Landfill, Inc. v. Cnty. of Solano, 657 F.3d 876, 882 (9th Cir. 2011) (quoting Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432 (1982). The Ninth Circuit "articulated an implied fourth requirement that (4) the federal court action would "enjoin the proceeding, or have the practical effect of doing so." Id., citing AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1148-49 (9th Cir.2007) (internal citation/quotation marks omitted).
The requirements for Younger abstention appear to be satisfied in the present case. "If the circumstances giving rise to Younger abstention apply, the district court must dismiss the action." Baffert, 332 F.3d at 617; see also Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir.1972) (per curiam) ("only in the most unusual circumstances is a defendant entitled to have federal interposition by way of injunction or habeas corpus until after the jury comes in, judgment has been appealed from and the case concluded in the state courts").
The complaint will be dismissed, and the motion for a "temporary injunction" in the form of a stay of pending SVP civil commitment proceedings, in light of this dismissal, is denied as moot. Plaintiff will, however, be granted leave to amend to bring colorable claims pursuant to section 1983.
If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Lacey v. Maricopa County, 693 F.3d 896, 927 (9th Cir. 2012) ) ("the general rule is that an amended complaint super[s]edes the original complaint and renders it without legal effect... .") Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's request for leave to proceed in forma pauperis is granted.
2. The complaint is dismissed for the reasons discussed above, with leave to file an amended complaint within twenty-eight days from the date of service of this order. Failure to file an amended complaint will result in a recommendation that the action be dismissed.
3. The motion for a "temporary injunction," ECF No. 6, is denied as moot.
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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE