(PC) Sanders v. Grimes ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TROY ALEXANDER SANDERS, Case No.: 1:18-cv-01285-AWI-JLT (PC) 12 Plaintiff, SECOND ORDER DIRECTING PLAINTIFF TO FILE A FIRST 13 v. AMENDED COMPLAINT 14 GRIMES, et al., 21-DAY DEADLINE 15 Defendants. 16 17 Plaintiff alleges that Defendants denied him access to the courts by failing to mail his 18 direct appeal of his criminal conviction. (Doc. 1.) The Court found that Plaintiff’s claims were 19 barred by the “favorable termination rule” of Heck v. Humphrey, 512 U.S. 477 (1994), and 20 dismissed this case. (Docs. 17, 19.) Plaintiff appealed. (Doc. 21.) The Ninth Circuit affirmed the 21 Court’s judgement with respect to Plaintiff’s request for release from custody, but it vacated the 22 judgment and remanded with respect to Plaintiff’s requests for relief other than release. (Doc. 26.) 23 The Court then screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A and found that it 24 failed to state a cognizable claim, and it granted Plaintiff leave to file a first amended complaint. 25 (Doc. 28.) 26 Plaintiff filed a response to the Court’s screening order on January 2, 2020. (Doc. 33.) In 27 his response, Plaintiff provides various legal standards for mail and access to courts claims, section 1983 actions, and motions to dismiss. (Id. at 2-10.) Plaintiff also provides a legal 1 argument for why he states a cognizable access to courts claim and why he should be awarded 2 damages for the bail he forfeited as a result of Defendants’ conduct. (Id. at 6-7, 10-11.) However, 3 Plaintiff does not address the crux of the Court’s screening order, which is that Plaintiff fails to 4 state a viable access to courts claim because he does not show that his underlying claim (i.e., his 5 direct appeal in state court) is non-frivolous or arguable. (See Doc. 28 at 4.) The Court, therefore, 6 again instructs Plaintiff to file a first amended complaint curing this deficiency. 7 In the introduction of his response, Plaintiff also states, “[a]lthough the plaintiff had 8 requested to amend the complaint to submit barred issues by way of §2254 petition, he believes 9 that … Rule 15(c) … would show the existence of a common core of operative facts…. The only 10 difference would be a change from 42 U.S.C.§ 1983 to §2254 petition for writ of habeas corpus 11 by a person in custody regarding barred issues.” (Doc. 33 at 2.) It is unclear whether Plaintiff is 12 attempting to request leave to file an amended pleading in the form of a habeas petition, 13 particularly because, in his conclusion, Plaintiff’s only specific request for relief is “the 14 reimbursement of the forfeited bond amount.” (Id. at 11.) 15 To the extent that Plaintiff does request leave to file an amended pleading in the form of a 16 habeas petition, the Court denies the request. In its findings and recommendations issued in April 17 of 2019, which were adopted by the assigned District Judge, the Court informed Plaintiff that his 18 claims were not “cognizable under section 1983 until the underlying actions he complains of have 19 been reversed, expunged, declared invalid, or called into question by writ of habeas corpus.” 20 (Doc. 17 at 6; Doc. 19 at 2.) Instead of filing a habeas petition at that time, Plaintiff appealed the 21 Court’s ruling to the Ninth Circuit, which in turn held that Plaintiff’s request for release from 22 custody was barred under Heck, 512 U.S. at 487-88. (Doc. 22 at 1; Doc. 26 at 1.) 23 As the Court stated in its order denying Plaintiff’s motion for release from prison, Plaintiff 24 cannot seek both damages under section 1983 and release from custody in the same action. (See 25 Doc. 30.) Where a complaint alleges some claims that sound in habeas and others that do not, the 26 Court may dismiss the habeas claims and allow the non-habeas claims to proceed, as it has done 27 here. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995); Ybarra v. Reno 1 defective complaint containing both habeas claims and section 1983 claims into a habeas 2 petition. See Trimble, 49 F.3d at 586. 3 Furthermore, Plaintiff has not shown that he exhausted his habeas claims in state court, as 4 is required by 28 U.S.C. § 2254(b). Preiser v. Rodriguez, 411 U.S. 475, 477 (1973). Since 5 Plaintiff does not make this showing, the Court finds that leave to amend his complaint into a 6 habeas petition would be futile. Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 7 (9th Cir. 1999) (“Where the legal basis for a cause of action is tenuous, futility supports the 8 refusal to grant leave to amend.”). 9 Accordingly, the Court again ORDERS Plaintiff, within 21 days from the date of service 10 of this order, to file a first amended complaint curing the deficiencies identified in the Court’s 11 screening order, (Doc. 28), OR a notice of voluntary dismissal of this entire section 1983 action. 12 Any amended complaint should contain “a short and plain statement of the claim showing that the 13 pleader is entitled to relief,” Fed. R. Civ. Pro. 8(a)(2); it should not contain detailed legal 14 arguments. If Plaintiff fails to comply with this order, the Court will recommend that this 15 action be dismissed with prejudice for failure to state a claim and to obey a court order. The 16 Court also DIRECTS the Clerk’s Office to send Plaintiff a civil rights complaint form. 17 IT IS SO ORDERED. 18 19 Dated: January 15, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27