Opinion
Case No. A05-0093 CV (JWS).
June 30, 2005
ORDER OF DISMISSAL
Earl Voyles, a state prisoner representing himself, has filed an amended civil rights complaint under 42 U.S.C. § 1983, claiming that defendants have violated his constitutional rights. First, however, the Court must again screen Mr. Voyles' complaint, and must dismiss if the action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." As explained by the Fourth Circuit Court of Appeals, "screen[ing] out meritless cases" is necessary to prevent the abuse of "free access to the courts."
See Docket No. 6.
28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b) and 42 U.S.C. § 1997e(c)(1) (screening prisoner civil rights actions); Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (subsection (iii) requires "dismissal of in forma pauperis proceedings that seek monetary relief against immune defendants"); Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat'l Bank Trust, 821 F.2d 1368, 1369 (9th Cir. 1987) (deny leave to proceed IFP "at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit").
See Nasim v. Warden, Maryland House of Correction, 64 F.3d 951, 953 (4th Cir. 1995) (en banc), cert. denied, 116 S.Ct. 1273 (1996), following Neitzke v. Williams, 490 U.S. 319, 324-328 (1989).
As a federal court, this Court is a court of limited, as opposed to general, jurisdiction; it has authority to hear only specified classes of cases. It is Mr. Voyles' burden, as the plaintiff, to show that this Court has jurisdiction to hear the claims. "To sustain a claim under § 1983, a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a constitutional right." As explained by the United States Supreme Court, Section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred."
See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994); Hunter v. Kalt, 66 F.3d 1002, 1005 (9th Cir. 1995).
Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990) (citations omitted).
Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979).
In conducting its review of Mr. Voyles' complaint, the Court is mindful that it must liberally construe a his pleadings and give him the benefit of any doubt. Before a court may dismiss Mr. Voyles' complaint for failure to state a claim upon which relief may be granted, the Court must provide him with a statement of the deficiencies in the complaint and an opportunity to amend, unless it is clear that amendment would be futile. In this case, Mr. Voyles was given an opportunity to amend, after an explanation of the deficiencies in his complaint, and any further amendment would be futile.
See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) ("Under § 1915A, when determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff. . . . Additionally, in general, courts must construe pro se pleadings liberally."); Frost v. Symington, 197 F.3d 348, 352 (9th Cir. 1999) (self-represented prisoner's claims must be liberally construed, and given the benefit of any doubt); Ortez v. Washington County, 88 F.3d 804, 807 (9th Cir. 1996).
See Schmier v. U.S. Court of Appeals for Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) ("Futility of amendment . . . frequently means that `it was not factually possible for [plaintiff] to amend the complaint so as to satisfy the standing requirement.'") (citations excluded); Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987); see also Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003) ("dismissal without leave to amend is improper unless it is clear that the complaint could not be saved by any amendment. Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996)"); Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003) ("Dismissal without leave to amend is proper only in `extraordinary' cases.") (citation omitted).
See Docket No. 3.
Habeas Corpus Remedy
Mr. Voyles alleges that defendants violated his constitutional rights by "den[ying his] right to file with [the state] court a request for co-counsel status in [his state criminal] case [and] blatantly [lying] to [Mr. Voyles;] and [that the] Office of Public Advocacy/State of Alaska failed to correct or remove these attorneys from [Mr. Voyles'] criminal case after several complaints and repeated conflicts of interest with [Mr. Voyles] in [his state criminal] case." Mr. Voyles's challenge to the effectiveness of counsel, is in effect, a challenge to the fact or duration of his confinement. Thus, as he was informed previously by the Court, habeas corpus is his exclusive remedy:
Docket No. 6 at 3.
Under the two-prong Strickland test, Mr. Voyles must establish that (1) "counsel's performance was deficient, i.e., that it fell below an `objective standard of reasonableness' under `prevailing professional norms'"; and (2) "he was prejudiced by counsel's deficient performance, i.e., that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different'." Strickland v. Washington, 466 U.S. 668, 691 (1984). See also Luna v. Cambra, 306 F.3d 954, 967, as amended, 311 F.3d 928, (9th Cir. 2002) ("It is hard to conceive how a criminal defendant is not prejudiced when his attorney wholly fails to investigate evidence that he was not at the scene of the crime and that another man was guilty of the crime with which he was charged.") ; Franklin v. Johnson, 290 F.3d 1223 (9th Cir. 2002) (finding unreasonable representation, without prejudice, so habeas petition denied).
See Docket No. 3 at 7-9.
[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Further, "[t]he fact that [a plaintiff] seeks money damages . . . as a remedy does not alter this conclusion."
Heck v. Humphrey, 512 U.S. 477, 487 (1994); Cunningham v. Gates, 312 F.3d 1148, 1153 (9th Cir. 2002), quoting Heck, 512 U.S. at 487 n. 6 ("In evaluating whether claims are barred by Heck, an important touchstone is whether a § 1983 plaintiff could prevail only by negating `an element of the offense of which he has been convicted.'"); see also Martin v. Sias, 88 F.3d 774 (9th Cir. 1996), extending Heck v. Humphrey to federal prisoners and Bivens actions.
Butterfield v. Bail, 120 F.3d 1023, 1025 (9th Cir. 1997).
As the Supreme Court has explained, if a plaintiff's claim "for declaratory relief and money damages . . . necessarily [implies] the invalidity of the punishment imposed, [it] is not cognizable under § 1983." Therefore, since Mr. Voyles is effectively challenging the fact or duration of his confinement, he should file a petition for writ of habeas corpus, after fully exhausting his available state court remedies.
Edwards v. Balisok, 117 S.Ct. 1584, 1589 (1997). But see, Ove v. Gwinn, 264 F.3d 817, 822 (9th Cir. 2001) (§ 1983 claims would not call into question validity of DUI convictions based on guilty pleas, and thus were not barred by Heck v. Humphrey); Sanford v. Motts, 258 F.3d 1117, 1119 (9th Cir. 2001) ("Excessive force used after an arrest is made does not destroy the lawfulness of the arrest. . . . Hence, . . . Heck is no bar.").
IT IS HEREBY ORDERED that:
1. This case is DISMISSED for failure to state a claim under 42 U.S.C. § 1983, without prejudice to filing a petition for habeas corpus under 28 U.S.C. § 2254, after all issues that Mr. Voyles wishes to raise are exhausted in state court by presentation first to the Alaska Superior Court then, if Mr. Voyles is unhappy with that result, to the Alaska Court of Appeals and then, if Mr. Voyles is unhappy with that result, in a petition for hearing to the Alaska Supreme Court.
See O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) ("A federal court may not grant habeas relief to a state prisoner unless he has properly exhausted his remedies in state court. . . . A petitioner must exhaust his state remedies by reaching the point where he has no state remedies available to him at the time he files his federal habeas petition."); Reutter v. Crandel, 109 F.3d 575, 577 (9th Cir.), cert. denied, 118 S. Ct. 142 (1997) ("Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies") (quoting Picard v. Connor, 404 U.S. 270 (1971)); Zichko v. Idaho. 247 F.3d 1015, 1022 (9th Cir. 2001) ("A habeas petitioner must present his claims to the state's highest court in order to satisfy the exhaustion requirement of 28 U.S.C. §§ 2254(b)(1) and (c)").
2. Mr. Voyles' application to proceed without prepayment of fees, at docket number 1, is DENIED.
The filing fee for a petition for writ of habeas corpus, under 28 U.S.C. § 2254, is $5.00.