Sanders v. Deputy District Attorney V. Lai ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PHILLIP SANDERS, No. 1:20-cv-00690-NONE-EPG 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 13 v. COMPLAINT BE DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO 14 V. LAI, et al., AMEND 15 Defendants. (ECF NO. 7) 16 TWENTY-ONE DAY DEADLINE 17 ORDER GRANTING MOTION TO FILE DOCKET MEMORANDUM 18 (ECF No. 8) 19 20 Plaintiff Phillip Sanders (“Plaintiff”) is proceeding pro se and in forma pauperis in this 21 civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this 22 action on May 18, 2020. (ECF No. 1). On July 8, 2020, the Court screened Plaintiff’s complaint, 23 found it did not comply with Federal Rule of Civil Procedure 8, provided legal standards, and 24 granted leave to amend. (ECF No. 4). Plaintiff filed a first amended complaint on September 9, 25 2020, (ECF No. 7) (“FAC”), which is now before the Court for screening. 26 The FAC brings claims concerning how Plaintiff was treated during criminal proceedings 27 against him. The Court finds that the FAC also does not comply with Federal Rule of Civil 28 Procedure 8 and fails to state any cognizable claims. The Court recommends that the FAC be 1 dismissed, with prejudice, and without leave to amend. 2 Plaintiff also filed a motion to file a docket memorandum in support of the FAC. (ECF 3 No. 8). The Court has reviewed the memorandum and accordingly will grant the motion, which it 4 also construes as the memorandum itself. 5 Plaintiff has twenty-one days from the date of service of this order to file objections to the 6 findings and recommendations. 7 I. SCREENING REQUIREMENT 8 As Plaintiff is proceeding in forma pauperis, the Court may screen the FAC under 28 9 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that may have been paid, 10 the court shall dismiss the case at any time if the court determines that the action or appeal fails to 11 state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 12 A complaint is required to contain “a short and plain statement of the claim showing that 13 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 14 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 16 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 17 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 18 Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this 19 plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are not 20 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 21 (9th Cir. 2009) (citation and quotation marks omitted). Additionally, a plaintiff’s legal 22 conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 23 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 24 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 25 pro se complaints should continue to be liberally construed after Iqbal). 26 II. ALLEGATIONS IN THE FAC 27 Plaintiff’s FAC alleges as follows: 28 /// 1 On April 20, 2018, Plaintiff was arrested on two outstanding bench warrants. They were 2 put on the calendar in department 95 even though the cases—numbers F10904103 and 3 F1390789—were not related. 4 Defendant D. Adams was Plaintiff’s public defender in case F1390789 in a hearing on 5 April 24, 2018. Defendant Adams committed malpractice by standing in for former Wheeler Act 6 attorney Curtis Sok in the F10904103 case. But Sok was no longer working that case because 7 attorney Richard Beshwate had taken over the Wheeler Act cases. 8 In addition, Plaintiff fired Sok right before he was sentenced in the possession case around 9 July 30, 2013. Plaintiff hired private attorney Deljjit Rackkar. But Defendant Adams stood in for 10 the wrong attorney of record on the first hearing after Plaintiff’s arrest. The public defender did 11 not have the police report or any files to defend Plaintiff. 12 On April 24, 2018, Defendant Adams requested that both of Plaintiff’s cases be moved for 13 Judge Gottlieb’s courtroom in department 30 for an appeal remittitur review for case F1390789 14 and a probation violation hearing in case F10904103. No district attorney was present at the first 15 hearing even though district attorney V. Lai was the department 95 DA of record on that date. 16 Defendant Adams was also not present. 17 these are the first cause of action that raise a federal question 14th amendment due process right the right to a fair hearing with the DA present as well as my 18 attorney of record the right to effective counsel with the files as well as the right to my attorney of record their was no substitute attorney filed in the 19 possession case the due process right of holding cases in their proper 20 jurisdiction thier was no judicial disqualifications combining 2 unrelated cases in the wrong court jurisdiction is legal malpractice and prosecutorial 21 misconduct 22 (ECF No. 7 at 3). 23 Defendant Adams suggested that both cases be moved to Judge Gottlieb in Department 24 30. Plaintiff had had previous experiences with Judge Gottlieb, including being “g[iven a] felony 25 for a misdemeanor that appeals reversed[.]” 26 Various defendants were not in the courtrooms on April 24 and 25, 2018. Judge Gottlieb 27 asked who Plaintiff’s attorney was. Plaintiff said it was Diljit Rakkar, who was not present. The 28 judge moved the matter to the afternoon. Defendant Adams was then present, as well as “wheeler 1 attorney Richard Beshwate.” Plaintiff let Beshwate take the case after Beshwate said he might be 2 able to get the matter dismissed. Plaintiff requested a Marsden hearing. Judge Gottlieb set bail for 3 both cases at $40,000 and “forwarded both cases to th[ei]r proper courtroom Department 11 back 4 in the apartment 95 the odd things about that hearing no court probation officer was present and 5 the attorneys still didn’t have the files while public defender Adams gave me my first of the 6 probation report[.]” 7 After the cases were separated and sent to the proper courtrooms, the felony probation 8 reports should have been rewritten. It is “extremely difficult” to violate felony probation on a case 9 that was a misdemeanor. 10 Plaintiff alleges that Defendant Sabrina Ashjain, a public defender, and Defendant Rakkar 11 violated Plaintiff’s Fourteenth Amendment right to “due process by not aiding in the filing of the 12 appeal and completely skipping the probation stay hearing when appeal was granted[.]” This led 13 to cruel and unusual punishment because of the excessive sentence. 14 The misdemeanor battery case was filed as a felony even though it should have been a 15 misdemeanor. It was filed under Judge David Gottlieb and assigned to Defendant Ashjian, who 16 triggered a systemic judicial inequality for men of color. Defendant Ashjian never asked for a bail 17 reduction, and she did not ask the court to reduce the charges from a felony to a misdemeanor. 18 She lied about sending out an investigator to retrieve video footage. There was no investigator 19 assigned to Plaintiff’s case. She did nothing at all. The district attorney reneged on the plea 20 agreement. She did not assist with Plaintiff’s appeal and refused to stay on probation. 21 A copy of the vop report was given to Plaintiff on April 25, 2018. He reviewed the report. 22 It raised several questions of federal violations. It was written on April 23, 2018, and submitted 23 by Defendant Justin Williams, a deputy probation officer, and reviewed by Defendant Jill 24 Reynolds PSM. The report had various errors. This amounts to ineffective assistance of counsel, 25 legal malpractice and gross professional negligence. 26 Defendant Adams engaged in what seems to be a conspiracy with defendants Williams 27 and Reynolds, who wrote the vop report, as well as Defendants Lai and Sok. 28 /// 1 Defendant Adams suggested to Plaintiff that he “waive time which [he] unwillingly did” 2 and told Plaintiff that she would give him a copy of the vop report at the next hearing. She moved 3 both of Plaintiff’s cases to department 30. No one was present at the hearing. 4 Defendant Sok provided ineffective assistance of counsel and committed legal malpractice 5 by not being present at a hearing. 6 Defendant A. Bosniak, a probation officer, committed legal malpractice by combining 7 remittitur case with a possession case and moving them to the wrong courtroom. 8 Defendant Lai committed legal malpractice and violated Plaintiff’s right to have a DA 9 present at every hearing. Defendant Lai “t[ook] unrelated cases outside jurisdiction without 10 judicial disqualification for example combining OJ murder trial with a unrelated civil damages 11 trial 1 is example[.]” 12 Defendant Rakkar violated Plaintiff’s Sixth Amendment rights with ineffective counsel 13 through legal malpractice. Had he performed the post-trial duty of filing a stay on probation once 14 the appeal was granted as well as a Proposition 47 to reduce the possession charge down to a 15 misdemeanor, Defendant Adams would not have been caught up in the second wave of due 16 process violations. 17 Defendants Williams and Reynolds and others violated Plaintiff’s 14th Amendment due 18 process rights by combining unrelated cases on a single probation report and moving a case to the 19 wrong court jurisdiction. 20 III. SECTION 1983 21 The Civil Rights Act under which this action was filed provides: 22 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of 23 Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the 24 deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action 25 at law, suit in equity, or other proper proceeding for redress.... 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 26 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 27 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also 28 1 Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 2 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); 3 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 4 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 5 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or 6 federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh 7 v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state 8 law”). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he 9 does an affirmative act, participates in another's affirmative act, or omits to perform an act which 10 he is legally required to do that causes the deprivation of which complaint is made.’” Preschooler 11 II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 12 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be established when an 13 official sets in motion a ‘series of acts by others which the actor knows or reasonably should 14 know would cause others to inflict’ constitutional harms.” Preschooler II, 479 F.3d at 1183 15 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles the standard 16 ‘foreseeability’ formulation of proximate cause.” Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 17 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 18 2008). 19 Additionally, a plaintiff must demonstrate that each named defendant personally 20 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must 21 be an actual connection or link between the actions of the defendants and the deprivation alleged 22 to have been suffered by Plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 23 691, 695 (1978). 24 IV. FEDERAL RULE OF CIVIL PROCEDURE 8 25 In the Court’s screening order, the Court found that Plaintiff’s first complaint did not 26 comply with Federal Rule of Civil Procedure 8 (“Rule 8”): 27 First, the Court finds that Plaintiff’s complaint does not contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. 28 R. Civ. P. 8(a) (“A pleading that states a claim for relief must contain: . . . a 1 short and plain statement of the claim showing that the pleader is entitled to relief.”). Plaintiff’s complaint lists various issues related to proceedings for a 2 probation violation. It names various attorneys and probation officers, as well as numerous claims. However, it does not clearly state his claims, i.e. it does 3 not state what someone did that violated his constitutional rights. 4 The requirement of a clear and plain statement is especially important in this 5 case because this Court is not an appellate court for the state superior court. This Court does not review whether the state superior court acted properly 6 according to its state rules and procedures. This proceeding under Section 7 1983 is limited to violations of constitutional rights. Thus, Plaintiff must set forth clearly what he alleges each defendant did that violated a constitutional 8 right. 9 (ECF No. 4 at 6-7). The Court granted Plaintiff leave to amend. 10 The FAC fails to comply with Rule 8. It is concerned primarily with descriptions of his 11 criminal proceedings including what courtroom he was in, who was present at or absent from 12 courtroom proceedings, where files were taken, and who his attorneys were at various times. As 13 explained to Plaintiff in the screening order, the Court is not an appellate court for his state 14 criminal proceedings and does not enforce state court rules to the extent they do not concern 15 violations of the U.S. Constitution. 16 To the extent Plaintiff attempted to bring other claims unrelated to those procedural 17 violations, this is not clear from the complaint. The Complaint does not identify in a plain 18 manner what any person did that allegedly violated a specific constitutional right. Although 19 Plaintiff lists various constitutional amendments in his FAC, Plaintiff does not tie those rights to 20 what someone specifically did or failed to do. Rather, he alleges that various state procedural 21 abnormalities occurred and then concludes that named constitutional rights were violated. 22 Accordingly, the FAC violates Rule 8 because it is not a short and plain statement. See Cafasso, 23 U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (holding a 24 complaint violates Rule 8 if a defendant would have difficulty understanding and responding to 25 the complaint); McHenry v. Renne, 84 F.3d 1172, 1179–80 (9th Cir. 1996) (affirming dismissal 26 with prejudice under Rule 8 because, in part, “the judge and opposing counsel, in order to 27 perform their responsibilities, cannot use a complaint such as the one plaintiffs filed, and must 28 prepare outlines to determine who is being sued for what. Defendants are then put at risk that 1 their outline differs from the judge’s, that plaintiffs will surprise them with something new at trial 2 which they reasonably did not understand to be in the case at all, and that res judicata effects of 3 settlement or judgment will be different from what they reasonably expected”); Spottedbear v. 4 Sheahan, No. 3:18-CV-00374-MMD-CBC, 2019 WL 1197697, at *2, 4 (D. Nev. Feb. 22, 5 2019), report and recommendation adopted, 2019 WL 1177959 (D. Nev. Mar. 13, 2019) 6 (recommending dismissal with prejudice and without leave to amend under Rule 8 where 7 complaint was “devoid of facts that specifically link or identify what actions were taken by each 8 named defendant that specifically relate to any identified constitutional right that was violated” 9 and because “as presently drafted, the Court cannot discern what each defendant did that violated 10 Plaintiffs' constitutional rights”). 11 V. ANALYSIS OF PLAINTIFF’S CLAIMS 12 Even if the FAC complied with Rule 8, it should still be dismissed for failure to state a 13 claim because all Defendants are immune from liability. 14 A. Claims Against Public Defenders and Private Attorneys 15 Plaintiff has asserted claims against various public defenders and a private attorney. 16 Section 1983 claims against public defenders and the private attorney are not cognizable because 17 they are private individuals for purposes of section 1983, and therefore do not act under color of 18 state law. Polk County v. Dodson, 454 U.S. 312, 325 (1981) (holding that public defenders 19 performing traditional functions of representation do not act under color of state law for purposes 20 of civil rights actions); Miranda v. Clark County, Nevada, 319 F.3d 465, 468 (9th Cir. 2003) 21 (“We therefore affirm the district court's dismissal of the complaint against the Assistant Public 22 Defender, Rigsby, on the ground that, as a matter of law, he was not a state actor.”). Accordingly, 23 Plaintiff’s claims against his public defenders and private attorneys fail. 24 B. Claims Against Judicial Officers 25 Plaintiff names several district attorneys as defendants in his complaint. Judges and 26 prosecutors are immune from liability under § 1983 when they are functioning in their official 27 capacities under proper jurisdiction. See Imbler v. Pactman, 424 U.S. 409, 427 28 (1976); see also Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004) 1 (“Absolute immunity is generally accorded to judges and prosecutors functioning in their official 2 capacities.”); Ashelman v. Pope, 793 F.2d 1072, 1075-77 (9th Cir. 1986) (noting that judges are 3 generally immune from § 1983 claims except when acting in “clear absence of all jurisdiction...or 4 performs an act that is not ‘judicial’ in nature,” and prosecutors are generally immune unless 5 acting without “authority”) (internal citations omitted); Walters v. Mason, No. 2:15-CV-0822- 6 KJM-CMK, 2017 WL 6344319, at *2 (E.D. Cal. Dec. 12, 2017) (same); Forte v. Merced Cty., 7 No. 1:15-CV-0147 KJM-BAM, 2016 WL 159217, at *12–13 (E.D. Cal. Jan. 13, 8 2016) (“prosecutorial immunity protects eligible government officials when they are acting 9 pursuant to their official role as advocate for the state”), report and recommendation adopted, No. 10 1:15-CV-0147-KJM-BAM, 2016 WL 739798 (E.D. Cal. Feb. 25, 2016). Where a prosecutor acts 11 within his authority “ ‘in initiating a prosecution and in presenting the state’s case,’ absolute 12 immunity applies.” Ashelman, 793 F.2d at 1076 (quoting Imbler, 424 U.S. at 431). This immunity 13 extends to actions during both the pre-trial and posttrial phases of a case. See Demery v. 14 Kupperman, 735 F.2d 1139, 1144 (9th Cir. 1984). 15 Plaintiff also names several probation officers as defendants. Probation officers are 16 afforded absolute immunity from damage actions under Section 1983 for claims relating to their 17 preparation of reports for state court judges. Demoran v. Witt, 781 F.2d 155, 158 (9th Cir. 1985). 18 This specific immunity is grounded in the principle that absolute immunity is extended 19 “to officers whose functions bear a close association to the judicial process ... [i]n other words, 20 parties who otherwise enjoy limited immunity enjoy absolute ‘quasi-judicial’ immunity when 21 their conduct relates to a core judicial function.” The extension of such immunity is supported 22 where there are procedural safeguards for the defendant. See id. “Absolute immunity fails to 23 attach to judicial officers only when they act clearly and completely outside the scope of their 24 jurisdiction.” Id.; see also Puentes v. Cty. of San Mateo, No. C 11-02511 SI, 2011 WL 4005383, 25 at *3 (N.D. Cal. Sept. 8, 2011) (“The Ninth Circuit has held that probation officers are immune 26 from liability for damages under 28 U.S.C. § 1983, when acting within the scope of their 27 employment.”), aff’d, 481 F. App’x 348 (9th Cir. 2012). 28 Here, Plaintiff alleges claims against various probation officers for writing a report to the 1 | judge. Plaintiff makes no allegations that the probation officers acted outside the scope of their 2 | duties or that their work was not part of their core judicial function. Therefore, Plaintiff also fails 3 | to state a claim with respect to the Defendants who are probation officers. 4} VI. LEAVE TO AMEND 5 The Court’s screening order noted that Plaintiff violated Rule 8 and provided legal 6 | standards. The FAC also violates Rule 8. Furthermore, the FAC names immune defendants even 7 | after the Court gave Plaintiff relevant legal standards about immunity. Therefore, the Court does 8 || not recommend granting further leave to amend. 9 | VI. CONCLUSION AND RECOMMENDATIONS 10 Based on the foregoing, it is HEREBY RECOMMENDED that: 11 1. This action be dismissed with prejudice without leave to amend for failure to comply 12 with Federal Rule of Civil Procedure 8 and failure to state a claim; and 13 2. The Clerk of Court be directed to close this case. 14 These findings and recommendations will be submitted to the United States district judge 15 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one 16 | (21) days after being served with these findings and recommendations, Plaintiff may file written 17 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 18 | Findings and Recommendations.” 19 Plaintiff is advised that failure to file objections within the specified time may result in the 20 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 21 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 In addition, Plaintiff's motion to file a memorandum (ECF No. 8) is HEREBY 23 | GRANTED. 24 95 IT IS SO ORDERED. 26 | Dated: _ November 2, 2020 [Je hey UNITED STATES MAGISTRATE JUDGE 28 Ww