(PC) Lupercio v. Lopez ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 RAMON NAVARRO LUPERCIO, Case No. 1:21-cv-00240-BAM (PC) 9 Plaintiff, ORDER DIRECTING THE CLERK OF THE COURT TO ASSIGN A FRESNO DISTRICT 10 v. JUDGE 11 LOPEZ, et al., FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION, 12 Defendants. WITH PREJUDICE, FOR THE FAILURE TO STATE A COGNIZABLE CLAIM 13 (ECF No. 14, 15, 18) 14 FOURTEEN (14) DAY DEADLINE 15 16 Plaintiff Ramon Navarro Lupercio (“Plaintiff”) is a state prisoner proceeding pro se and in 17 forma pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff filed a first amended 18 complaint without first waiting for screening of the original complaint. Plaintiff’s first amended 19 complaint, filed on March 3, 2021, is currently before the Court for screening. (Doc. 15.) 20 I. Screening Requirement and Standard 21 The Court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 23 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 24 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 25 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 26 A complaint must contain “a short and plain statement of the claim showing that the 27 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 28 1 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 2 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 3 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 4 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 5 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 6 To survive screening, Plaintiff’s claims must be facially plausible, which requires 7 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 8 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 9 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 10 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 11 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 12 II. Plaintiff’s Allegations 13 Plaintiff is currently out of custody. The events in the first amended complaint are alleged 14 to have occurred during Plaintiff’s criminal prosecution. Plaintiff names as defendants: (1) Mark 15 Lopez, Detective with the Visalia Police Department, and (2) Grimes, Detective with the Visalia 16 Police Department. Plaintiff is alleging that the Detectives engaged in a conspiracy to manipulate 17 evidence and falsify evidence. The Court is unable to decipher the complaint’s allegations, but the 18 basic premise is that fabricated evidence was used to convict him. 19 Plaintiff seeks immediate release from prison and compensatory damages. 20 III. Plaintiff’s Claims are Barred 21 Petitioner was convicted on April 25, 2003, following a jury trial in Tulare County 22 Superior Court, of attempted murder with a firearm enhancement. The court sentenced him to 23 serve a term in state prison of 32 years to life. See Lupercio v. Gonzalez, No. 1:08-CV-0012 LJO 24 WMW (HC), 2008 WL 5156646, at *1 (E.D. Cal. Dec. 9, 2008), report and recommendation 25 adopted, No. 1:08-CV-0012 LJO WMW (HC), 2009 WL 159392 (E.D. Cal. Jan. 22, 2009) (ruling 26 on the federal habeas corpus petition.) Plaintiff filed a direct appeal of his conviction and on 27 November 23, 2004, the California Court of Appeal, Fifth Appellate District (“Court of Appeal”), 28 affirmed the judgment. Id. Petitioner filed a petition for review with the California Supreme 1 Court, which the court denied on February 2, 2005. Id. Plaintiff filed a federal habeas corpus 2 petition on December 13, 2007, which was denied on January 22, 2009. Id. 3 Plaintiff has filed at least three prior §1983 civil rights complaints against persons or 4 entities involved in his criminal conviction. Each time, the complaints were dismissed as Heck 5 barred. A § 1983 action for damages will not lie where “establishing the basis for the damages 6 claim necessarily demonstrates the invalidity of the conviction.” Heck v. Humphrey, 512 U.S. 7 477, 481–482, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Plaintiff may not pursue a § 1983 8 damages for this claim until Plaintiff can prove “that the conviction or sentence has been reversed 9 on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to 10 make such determination, or called into question by a federal court's issuance of a writ of habeas 11 corpus.” Id. at 487. See Lupercio v. Visalia Police Department, No. 1:10-cv-02314-AWI-GBC 12 (PC) (Doc. 12) (E.D.Cal. May 5, 2011) (finding as Heck barred Plaintiff’s challenge to allegedly 13 false statements that were given to the trial court that ultimately led to Plaintiff’s conviction), 14 findings and recommendations adopted August 10, 2011; Lupercio v. Visalia Police Dep't, No. 15 1:13-CV-01028-LJO, 2013 WL 5375639, at *3 (E.D. Cal. Sept. 24, 2013) (“Specifically, the 16 Court noted that Plaintiff's complaint in this action was largely identical to the claims Plaintiff 17 attempted to raise in a prior action, Lupercio v. Visalia Police Department, case number 1:10–cv– 18 02314–AWI–GBC. Plaintiff's prior case was dismissed as barred by the Heck doctrine.”), 19 findings and recommendations adopted October 31, 2013, aff'd, Case No. 13-17363 (9th Cir. 20 Sept. 25, 2014); Lupercio v. Visalia Police Dep't, No. 1:18-CV-0036 LJO EPG, 2018 WL 21 2229210, at *2 (E.D. Cal. May 15, 2018) (his claim for damages arising from his criminal 22 conviction under § 1983 is barred by Heck and must be dismissed). 23 Other attempts by Plaintiff to challenge his conviction by §1983 have been rejected. See 24 Luperio v. Heusdens, No. 1:13-CV-00628-LJO, 2013 WL 3341026, at *3 (E.D. Cal. July 2, 2013) 25 (the Section 1983 claims against all Defendants are not cognizable because Defendants did not 26 act under the color of state law in representing Plaintiff in the underlying criminal action or the 27 subsequent appeal process.); Lupercio v. Mendoza, No. 1:21-CV-580-DAD-HBK, 2021 WL 28 2915053, at *1 (E.D. Cal. July 12, 2021), report and recommendation adopted, No. 1:21-CV- 1 00580 DAD HBK, 2021 WL 3363527 (E.D. Cal. Aug. 3, 2021) (§1983 not available for Plaintiff 2 to show that Mr. Mendoza provided false testimony in his underlying conviction.) 3 Plaintiff previously sought federal habeas relief in this Court with respect to the same 4 conviction numerous, successive times. Thus, the Court need not address Plaintiff’s “habeas 5 corpus petition” (Doc. 14), because the instant petition is yet another “second or successive” 6 petition under 28 U.S.C. § 2244(b). See Lupercio v. Gonzalez, No. 1:08-cv-00012-LJO-JLT 7 (dismissed as untimely); Lupercio v. Sherman, No. 1:15-cv-00915-DAD-MJS (dismissed as 8 successive); Lupercio v. Sherman, No. 1:15-cv-01834-DAD-MJS (same); Lupercio v. Sherman, 9 No. 1:16-cv-00233-DAD-MJS (same); Lupercio v. People of the State of California, No. 1:20-cv- 10 00925-DAD-JDP (same); Lupercio v. Visalia Police Dep't, No. 1:21-CV-00306 JLT HC, 2021 11 WL 949434, at *1 (E.D. Cal. Mar. 12, 2021), report and recommendation adopted, No. 1:21-CV- 12 0306 DAD JLT(HC), 2021 WL 1611613 (E.D. Cal. Apr. 26, 2021) (same). See McNabb v. Yates, 13 576 F.3d 1028, 1030 (9th Cir. 2009) (holding “dismissal of a first habeas petition for untimeliness 14 presents a ‘permanent and incurable’ bar to federal review of the underlying claims,” and thus 15 renders subsequent petitions “second or successive”). Petitioner makes no showing that he has 16 obtained prior leave from the Ninth Circuit to file his successive petition. Therefore, this Court 17 has no jurisdiction to consider Petitioner's renewed application for relief under 28 U.S.C. § 2254 18 and must dismiss the petition. See Burton v. Stewart, 549 U.S. 147, 157 (2007). 19 Based on the above, Plaintiff’s claim for damages under § 1983 is barred by Heck and 20 must be dismissed. Because Plaintiff cannot “demonstrate that [his] conviction or sentence has 21 already been invalidated,” Heck, 512 U.S. at 487, there is no way to cure this defect on 22 amendment, and dismissal must be without leave to amend and with prejudice. The Court finds 23 that Plaintiff's claims in this action are not capable of being cured by further leave to amend. 24 IV. Conclusion and Recommendation 25 As set forth above, the Court finds that Plaintiff's first amended complaint fails to state 26 any cognizable claims. The Court further finds that Plaintiff's claims are not capable of being 27 cured by granting further leave to amend. 28 1 Based upon the foregoing, it is HEREBY RECOMMENDED that Plaintiff's complaint be 2 DISMISSED WITH PREJUDICE. 3 These Findings and Recommendation will be submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 5 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 6 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 7 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 8 specified time may result in the waiver of the “right to challenge the magistrate’s factual 9 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 10 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 12 IT IS SO ORDERED. 13 14 Dated: August 19, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28