Rivas v. Cook ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL RIVAS, No. 1:20-cv-01484-DAD-SAB (PS) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 JIM COOK, et al., ACTION 15 Defendants. (Doc. No. 13) 16 17 Plaintiff Daniel Rivas is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On January 4, 2021, the assigned magistrate judge screened plaintiff’s first amended 21 complaint (“FAC”) and issued findings and recommendations recommending that the FAC be 22 dismissed without further leave to amend being granted. (Doc. No. 13.) The magistrate judge 23 found that plaintiff fails to state a cognizable claim against the two defendants in this action— 24 defendant Walsh (the prosecutor in plaintiff’s underling criminal case) and defendant Cook (a 25 private expert witness on cell phones retained by the prosecutor)—because defendant Walsh is 26 entitled to prosecutorial immunity “for actions taken in his official capacity in prosecuting 27 plaintiff,” and “plaintiff has not alleged that defendant Cook is a state actor or any other facts by 28 which the court could infer that defendant Cook was a member of any alleged conspiracy or that 1 he acted in concert with the state actors.” (Id. at 6–7.) In addition, the magistrate judge found 2 that “[t]he gravamen of plaintiff’s complaint is that he was convicted based on fabricated 3 evidence” and that police officers allegedly obtained a search warrant to search his property in 4 violation of the Fourth Amendment. (Id. at 3, 5.) But, because plaintiff does not also allege in 5 his FAC “that his criminal conviction has been reversed on direct appeal, expunged by executive 6 order, declared invalid by a state tribunal authorized to make such determination, or called into 7 question by a federal court’s issuance of a writ of habeas corpus,” the magistrate judge found that 8 plaintiff’s civil claims as asserted in his FAC are barred by the Supreme Court’s decision in Heck 9 v. Humphrey, 512 U.S. 477 (1994). Therefore, the magistrate judge concluded that “[s]ince 10 plaintiff’s claims in this action are barred by Heck and he is bringing this action against 11 individuals who are immune or not subject to suit under § 1983, granting further leave to amend 12 would be futile.” (Id. at 8.) The findings and recommendations were served on plaintiff and 13 contained notice that any objections thereto were to be filed within thirty (30) days after service. 14 (Id. at 8–9.) After receiving an extension of time to do so, plaintiff timely filed objections to the 15 pending findings and recommendations on March 1, 2021 (Doc. No. 16.) 16 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, this 17 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 18 including plaintiff’s objections, the court concludes that the findings and recommendations are 19 supported by the record and proper analysis. 20 In his objections, plaintiff merely reiterates the claims that he asserted in his FAC. (Doc. 21 No. 16.) Plaintiff does not meaningfully object to the magistrate judge’s finding that his claims in 22 this action are barred by the decision in Heck. Rather, plaintiff states that if he failed to cure the 23 deficiencies identified by the magistrate judge’s screening order, which provided him with the 24 relevant legal standards that govern the claims he was attempting to assert, any such failure was 25 due to the lack of access to the prison law library due to the COVID-19 pandemic. (Id. at 2–3.) 26 However, the undersigned notes that plaintiff sought and received an extension of time to file his 27 FAC because he was unable at that time to access the law library. (Doc. No. 11.) Instead of 28 seeking an additional extension of time, plaintiff filed his FAC, which included more detailed 1 | factual allegations—all of which support the magistrate judge’s findings that plaintiff has failed to 2 | state a cognizable claim in this action. Therefore, even if plaintiff were to gain access to the law 3 | library, the undersigned agrees with the magistrate judge’s findings that plaintiff's FAC fails to 4 | state a cognizable § 1983 claim and that granting further leave to amend in this case would be 5 | futile because plaintiff's claims challenging his conviction are Heck-barred. 6 Accordingly, 7 1. The findings and recommendations issued on January 4, 2021 (Doc. No. 13) are 8 adopted in full; 9 2. This action is dismissed as barred by the decision in Heck and due to plaintiff's 10 failure to state a claim; and 11 3. The Clerk of Court is directed to close this case. 12 | IT IS SO ORDERED. si □ Dated: _ March 8, 2021 J al, A i 7 a 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28