Briggs v. Fenstermaker ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHNNY LEE BRIGGS, Case No. 1:23-cv-00146-JLT-SAB 12 Plaintiff, AMENDED FINDINGS AND RECOMMENDATIONS 13 v. RECOMMENDING DISMISSAL OF FIRST AMENDED COMPLAINT 14 DAVID FENSTERMAKER, et al., (ECF Nos. 1, 11, 13) 15 Defendants. DEADLINE: FOURTEEN DAYS 16 17 18 19 20 Plaintiff Johnny Lee Briggs (“Plaintiff”), a state prisoner (BU6282) proceeding pro se, 21 initiated this civil rights action pursuant to 42 U.S.C. § 1983 on January 31, 2023, against David 22 Fenstermaker (“Fenstermaker”), the Community Regional Medical Center (“CRMC”), and the 23 Medical Board of Examiners (“Board”). (ECF No. 1.) The Court screened the complaint, found 24 Plaintiff’s claims were Heck-barred, and issued findings and recommendations to dismiss the 25 complaint, without prejudice. (ECF No. 11.) Plaintiff filed objections to the findings and 26 recommendations indicating he was willing to dismiss certain claims and defendants but wished 27 to proceed on his claims (ECF No. 12), then filed a first amended complaint (“FAC”) (ECF No. 28 13). The FAC, which now purports to sue Defendants Fenstermaker and Heather Shirley 1 (collectively, “Defendants”) (id. at 2), is currently before this Court for screening. For the 2 reasons stated herein, the Court recommends that the FAC be dismissed, without prejudice, for 3 failure to state a claim. 4 I. 5 SCREENING REQUIREMENT 6 The Court is required to screen complaints brought by prisoners seeking relief against a 7 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 8 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 9 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 10 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 11 1915(e)(2)(B). 12 Federal Rule of Civil Procedure (“Rule”) 8 requires that a complaint contain “a short and 13 plain statement of the claim showing that the pleader is entitled to relief ….” Fed. R. Civ. P. 14 8(a)(2). If the factual elements of a cause of action are present but are scattered throughout the 15 complaint and not organized into a “short and plain statement of the claim,” dismissal for failure 16 to satisfy Rule 8 is proper. McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). Thus, to 17 comply with Rule 8, a complaint should clearly and fully set forth “who is being sued, for what 18 relief, and on what theory, with enough detail to guide discovery.” Id. Such notice pleading is 19 required in federal court in order to “give the defendant fair notice of what the claim … is and the 20 grounds upon which it rests.” Bell Atlantic Corp. v. Twombly (Twombly), 550 U.S. 544, 555 21 (2007) (internal quotations omitted). Detailed factual allegations are not required, but 22 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 23 statements, do not suffice.” Ashcroft v. Iqbal (Iqbal), 556 U.S. 662, 678 (2009) (citing Twombly, 24 550 U.S. 544, 555 (2007)). “Vague and conclusory allegations of official participation in civil 25 rights violations are not sufficient ….” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 26 266, 268 (9th Cir. 1982). 27 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 28 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1 1113, 1121 (9th Cir. 2012) (citations omitted). Nonetheless, to survive screening, Plaintiff’s 2 claims must be facially plausible, which requires sufficient factual detail to allow the Court to 3 reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. 4 at 678–79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility 5 that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent 6 with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 7 678; Moss, 572 F.3d at 969. Thus, where a plaintiff fails to “nudge [his or her] claims … across 8 the line from conceivable to plausible[,]” the complaint is properly dismissed. Iqbal, 556 U.S. at 9 680 (internal quotations omitted). 10 As a general rule, the Court must limit its review to the operative complaint and may not 11 consider facts presented in extrinsic evidence. See Lee v. City of L.A., 250 F.3d 668, 688 (9th 12 Cir. 2001). Materials submitted as part of the complaint, however, are not “outside” the 13 complaint and may be considered. Id.; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 14 F.2d 1542, 1555 n.19 (9th Cir. 1990). Moreover, the Court is not required to accept as true 15 conclusory allegations which are contradicted by exhibits to the complaint or matters properly 16 subject to judicial notice. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 17 2001), amended on denial of reh’g, 275 F.3d 1187 (9th Cir. 2001); Steckman v. Hart Brewing, 18 Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998). A plaintiff can also “plead himself out of a claim 19 by including unnecessary details contrary to his claims.” Sprewell, 266 F.3d at 988. Leave to 20 amend may be granted to the extent that the deficiencies of the complaint can be cured by 21 amendment. Cato v. U.S., 70 F.3d 1103, 1106 (9th Cir. 1995). 22 II. 23 COMPLAINT ALLEGATIONS1 24 The Court accepts Plaintiff’s allegations as true only for the purpose of the sua sponte 25 1 As an initial matter, the Court notes the FAC appears to allude to, but not re-allege, certain facts asserted in the 26 original complaint. This may be based on a lack of understanding by Plaintiff that an amended complaint supersedes the original. It is also possible Plaintiff omitted certain factual allegations that the Court previously noted were 27 contrary to his claims so as to avoid a second recommendation for dismissal. Accordingly, liberally construing the pleadings as incorporating the referenced allegations, and to provide some necessary context, the Court shall include 28 the relevant allegations asserted in the original complaint herein. 1 screening requirement under 28 U.S.C. § 1915. 2 Plaintiff alleges that, on June 21, 2022, he was arrested for numerous weapons charges 3 and attempted murder with “great bodily injury assault.” (ECF No. 1 at 3, 5.) The alleged victim, 4 Russel Lowe, died in the hospital 17 days later.2 (Id. at 5.) On July 8, 2022, after Mr. Lowe’s 5 death, a second amended criminal complaint was filed against Plaintiff, in which the charge for 6 attempted murder was amended to first degree murder. (Id. at 4–5.) Plaintiff appears to allege 7 the amendments to the criminal complaint were made because of representations made by 8 Defendant Fenstermaker, a Fresno Police Department Officer. (See ECF No. 13 at 3 (alleging, 9 verbatim, “Defendant David Fenstermaker is not a prosecutor nor is the Fresno Police 10 Department agency/officer, etc. authorized to duplicate file dismissed charges these actions 11 omitted violates my rights.”).) Plaintiff alleges “Defendant committed fraud by refiling amended 12 felony complaint on behalf of Fresno Police Department injuring my right to due process speedy 13 trial.” (Id.) These facts are asserted in support of Plaintiff’s first cause of action, titled 14 “separation of powers constitutional violation … S.B. 262.”3 (ECF No. 13 at 3.) 15 Plaintiff alleges that, due to a “classification error and double jeopardy by commitment 16 offense and enhancements, once dismissed reimposed unauthorizably [sic],” he is being 17 unconstitutionally confined at the Wasco State Prison (“WSP”) by the Warden, Defendant 18 Shirley. (Id. at 2, 4.) Plaintiff claims he is being confined at WSP “illegally in excess of [an 19 unspecified] confinement statute,” which “breaches the contract to [Plaintiff’s] total term imposed 20 ….” (Id. at 4.) Plaintiff asserts these facts in support of his second cause of action, for Eighth 21 Amendment “excessive confinement” violations. (Id.) 22 In addition, Plaintiff indicates he is a state prisoner incarcerated at Wasco State Prison 23 2 In the original complaint, Plaintiff alleged that Mr. Lowe did not die as a result of Plaintiff’s actions, but due to 24 medical malpractice and professional negligence at the hospital, but that the police suppressed these medical records in order to amend the charge in the criminal complaint against Plaintiff from attempted murder to murder. (ECF No. 25 1 at 5.) 3 Plaintiff previously referred to Assembly Bill 620 in his complaint. (See ECF No. 1 at 4–5.) This seemed relevant 26 to Plaintiff’s original claims that he was wrongly charged with weapons possession, as California Senate Bill 620 is legislation relating to sentencing enhancements in felony cases for firearm use. California Senate Bill 262 is 27 legislation relating to prohibiting costs relating to the conditions of release on bail from being imposed on persons released on bail, and require the return of certain amounts paid to a bail bondsman where an arrestee is ultimately 28 dismissed or no charges are filed within 60 days of arrest. 1 (“WSP”) (see id. at 1); and Plaintiff engaged the prison grievance process through the final level 2 of appeals for his claims (see id. at 3, 4). 3 Plaintiff alleges he suffered “personal injury” from the “excessive confinement” resulting 4 from the classification errors and illegal sentence enhancements, and “Defendants’ inaction to 5 recall procedure.” (Id. at 4.) He seeks unspecified injunctive relief, monetary damages, sanctions 6 for malicious prosecution, and declaratory relief. (See id. at 5.) 7 III. 8 DISCUSSION 9 Section 1983 provides a cause of action for the violation of a plaintiff’s constitutional or 10 other federal rights by persons acting under color of state law. 42 U.S.C. § 1983; Long v. Cnty. 11 of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 12 2002). To state a claim under § 1983, a plaintiff is required to show that (1) each defendant acted 13 under color of state law and (2) each defendant deprived him of rights secured by the Constitution 14 or federal law. Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1144 (9th Cir. 2021) (citing 15 Long, 442 F.3d at 1185; West v. Atkins, 487 U.S. 42, 48 (1988)). This requires the plaintiff to 16 demonstrate that each defendant personally participated in the deprivation of his rights. Jones, 17 297 F.3d at 934; see also Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); 18 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 19 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)) (a deprivation occurs if the defendant “does 20 an affirmative act, participates in another’s affirmative act, or omits to perform an act which he is 21 legally required to do”). In other words, to state a claim for relief under § 1983, Plaintiff must 22 link each named defendant with some affirmative act or omission that demonstrates a violation of 23 his federal rights. Moreover, the complaint must allege that each defendant acted with the 24 requisite state of mind to violate the underlying constitutional provision. OSU Student All. v. 25 Ray, 699 F.3d 1053, 1070 (9th Cir. 2012). 26 A. Heck-Bar 27 The Court finds Plaintiff has not alleged a cognizable claim because his claims run afoul 28 of Heck v. Humphrey and are thus Heck-barred. 1 In Heck v. Humphrey, the Supreme Court held that, 2 in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions 3 whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has 4 been reversed on direct appeal …. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider 5 whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the 6 complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. 7 8 Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). Therefore, if a judgment for Plaintiff on the § 9 1983 claim “would necessarily imply the invalidity of his conviction,” id. at 487, Heck would bar 10 Plaintiff from bringing his cause of action until his conviction was overturned. The Ninth Circuit 11 has elaborated that Heck “precludes a section 1983 claim based on actions which would ‘render a 12 conviction or sentence invalid’ where that conviction has not been reversed, expunged or called 13 into question by issuance of a writ of habeas corpus.” Smithart v. Towery, 79 F.3d 951, 952 (9th 14 Cir. 1996). Thus, “if a criminal conviction arising out of the same facts stands and is 15 fundamentally inconsistent with the unlawful behavior for which section 1983 damages are 16 sought, the 1983 action must be dismissed.” Id. 17 Here, the FAC alleges less facts and appears more unintelligible than the original 18 complaint; yet, the central thread of this civil action remains the same: Plaintiff claims he is 19 wrongfully confined at WSP, and this wrongful confinement is the result of Officer Fenstermaker 20 illegally pursuing criminal charges against Plaintiff, and Warden Shirley wrongfully refusing to 21 release Plaintiff from prison. Thus, Plaintiff appears to challenge the nature of the criminal 22 charges, his ultimate conviction, and the length of the sentence resulting therefrom. 23 Furthermore, even though in the requested relief section of his complaint, Plaintiff does 24 not expressly seek to overturn the conviction, based on its review of Plaintiff’s allegations, the 25 Court concludes Plaintiff impliedly seeks to “reverse, expunge or call into question” his 26 conviction and sentence. For example, Plaintiff characterizes the amended felony charges as 27 “fraudulent” “malicious prosecution” and violative of his “right to a speedy trial.” (ECF No. 13 28 at 3.) In addition, Plaintiff appears to suggest that, once dismissed, the felony complaint could 1 not legally be refiled or amended without running afoul of double jeopardy principles. (See id. at 2 3, 4.) Plaintiff also seems to argue the sentence he is currently serving is longer than it should be, 3 due to some “breach of contract” related to an unspecified “confinement statute” and Plaintiff’s 4 “total term imposed.” (See id. at 4.) Finally, Plaintiff seeks monetary damages from Defendants 5 for the “personal injury” he sustained in the form of either a longer prison sentence resulting from 6 the amended criminal complaint, or possibly being required to serve any prison sentence based on 7 the claim that the amended criminal complaint never should have been filed after charges were 8 initially dismissed. Perhaps most directly, Plaintiff refers to his imprisonment as “excessive 9 confinement” and “being confined unconstitutionally,” and his sentence as resulting from 10 “unauthorized” criminal charges and “illegal commitment enhancements.” (Id. at 4.) 11 Prevailing on such a claim would necessarily imply the invalidity of Plaintiff’s conviction 12 or sentence for murder, rather than the lesser charge of attempted murder. Heck, 512 U.S. at 13 486–87. Thus, Plaintiff must first raise any challenge to his arrest, prosecution, or conviction via 14 a writ of habeas corpus. Smithart, 79 F.3d at 952 (“There is no question that Heck bars [the 15 plaintiff’s] claims that defendants lacked probable cause to arrest him and brought unfounded 16 criminal charges against him … If [plaintiff] wishes to challenge his arrest, prosecution or 17 conviction, he should file a writ of habeas corpus.”); see also Preiser v. Rodriguez, 411 U.S. 475, 18 500 (1973) (holding the exclusive method for a state prisoner to challenge his state court 19 conviction or sentence in federal court is by filing a petition for writ of habeas corpus under 28 20 U.S.C. § 2254). Even to the extent Plaintiff only challenges the length of his sentence, the 21 Supreme Court has held that, “when a state prisoner is challenging the very fact or duration of his 22 physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate 23 release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas 24 corpus.” Preiser, 411 U.S. at 500. 25 Here, Plaintiff’s allegations indicate he was convicted of the amended charges, and is 26 currently incarcerated on his conviction of these charges. But importantly, Plaintiff does not 27 allege that he has successfully appealed the conviction and had it overturned through writ of 28 habeas corpus. Thus, to the extent Plaintiff impliedly seeks to invalidate his arrest, prosecution or 1 conviction, his claims are Heck-barred. Dismissal is therefore warranted. 2 Furthermore, even if Plaintiff’s claims were not Heck-barred, Plaintiff fails to allege facts 3 sufficient to state any cause of action on which relief may be granted, as discussed herein. 4 B. Federal Rule of Civil Procedure 8 5 As noted, Federal Rule of Civil Procedure (“Rule”) 8(a) requires that a pleading contain 6 “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Iqbal, 7 556 U.S. at 678–79. Under notice pleading in federal court, the complaint must “give the 8 defendant fair notice of what the claim … is and the grounds upon which it rests.” Twombly, 550 9 U.S. at 555 (internal quotations omitted). “This simplified notice pleading standard relies on 10 liberal discovery rules and summary judgment motions to define disputed facts and issues and to 11 dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 12 Rule 8 requires “each averment of a pleading to be ‘simple, concise, and direct.’” See 13 McHenry, 84 F.3d at 1177–79 (affirming dismissal of complaint that was “argumentative, prolix, 14 replete with redundancy, and largely irrelevant”). To comply with Rule 8, a complaint should 15 clearly and fully set forth “who is being sued, for what relief, and on what theory, with enough 16 detail to guide discovery.” Id. at 1178. Further, “each claim founded on a separate transaction or 17 occurrence … must be stated in a separate count.” Fed. R. Civ. P. 10(b); see also Hendrix v. 18 Health & Soc. Servs. of Solano Cnty., No. 2:15-cv-02689-MCE-EFB PS, 2017 WL 4004168, at 19 *5 (E.D. Cal. Sept. 12, 2017) (requiring “clear headings to delineate each claim alleged and 20 against which defendant”), report and recommendation adopted, 2017 WL 4340166 (E.D. Cal. 21 Sept. 29, 2017). 22 “Shotgun pleading occurs when one party pleads that multiple parties did an act, without 23 identifying which party did what specifically; or when one party pleads multiple claims, and does 24 not identify which specific facts are allocated to which claim.” Hughey v. Camacho, No. 13- 25 2665, 2014 WL 5473184, at *4 (E.D. Cal. Oct. 23, 2014); see also Harrell v. Hornbrook Cmty. 26 Serv. Dist., No. 2:14-cv-01595-KJM-GGH, 2015 WL 5329779, at *10 (E.D. Cal. Sept. 10, 2015). 27 Thus, if the factual elements of a cause of action are present but are scattered throughout the 28 complaint and not organized into a “short and plain statement of the claim,” dismissal for failure 1 to satisfy Rule 8 is proper. McHenry, 84 F.3d at 1178. Further, “[t]he propriety of dismissal for 2 failure to comply with Rule 8 does not depend on whether the complaint is wholly without merit.” 3 Id. at 1179. Indeed, Rule 8(d)’s requirement that each averment of a pleading be “‘simple, 4 concise, and direct,’ applies to good claims as well as bad, and is a basis for dismissal 5 independent of Rule 12(b)(6).” Id. 6 The instant FAC is not simple, concise, or direct. Rather, the FAC is replete with legal 7 conclusions against the Defendants and directs various unintelligible phrases against Defendants, 8 often combined with legal jargon, such as the statement that Plaintiff suffered “personal injury of 9 premises liability excessive confinement due process classification illegal commitment 10 enhancement by Defendants[’] inaction to recall procedure.” (ECF No. 13 at 4.) See Zahir v. 11 Mountcastle, No. 21-CV-1023, 2021 WL 1143381, at *3 (E.D. Pa. Mar. 25, 2021) (“other than 12 irrelevant statements of legal fictions, Zahir asserts no facts to demonstrate any viable cause of 13 action for money damages. Legal sounding but meaningless verbiage is nothing more than a 14 nullity”). The FAC does not, however, allege facts showing the actions either Fenstermaker or 15 Shirley took against Plaintiff. Further, while the majority of Plaintiff’s complaint appears to be 16 devoted to challenging his conviction and sentence, it remains unclear whether Plaintiff is 17 actually asserting any other claims, as he makes general allusions to various unspecified “rights” 18 without explanation throughout the complaint, such as the Eighth Amendment, S.B. 262, double 19 jeopardy, due process, speedy trial, fraud, separation of powers, and breach of contract. (See 20 generally ECF No. 13.) 21 Nor does Plaintiff articulate actions taken by each named Defendant. Instead, Plaintiff 22 broadly alleges Defendant Warden Shirley “violat[ed] [his] rights” by excessively confining him 23 in prison (id. at 4), and Defendant Officer Fenstermaker “violated [Plaintiff’s] rights” by 24 “represent[ing] [the Fresno Police Department’s] interest in re-filed amended felony compliant … 25 [of] dismissed charges” (id. at 3). Given this failure to allege his claims with the requisite 26 specificity, it is unclear to the Court which actions Plaintiff is attributing to each Defendant. As a 27 result, neither Defendant “can[] adequately prepare a defense….” Hughey, 2014 WL 5473184, at 28 *4. This violates Rule 8, thus warranting dismissal. 1 C. False Arrest/False Imprisonment 2 Even if Plaintiff’s claims were not Heck-barred, to the extent he challenges his arrest and 3 incarceration, Plaintiff fails to state a cognizable claim. 4 The Fourth Amendment prohibits arrests without probable cause or other justification. 5 Dubner v. City & Cnty. of S.F., 266 F.3d 959, 964 (9th Cir. 2001). An arrest is supported by 6 probable cause if, under the totality of the circumstances, a prudent person would have concluded 7 that there was a fair probability the suspect had committed a crime. Beck v. Ohio, 379 U.S. 89, 8 91 (1964); Luchtel v. Hagemann, 623 F.3d 975, 979 (9th Cir. 2010); Gillan v. City of San 9 Marino, 147 Cal. App. 4th 1033, 1044 (2007) (“Probable cause exists when the facts known to 10 the arresting officer would persuade someone of ‘reasonable caution’ that the person to be 11 arrested has committed a crime.”). Thus, to state a cognizable claim for false arrest, Plaintiff 12 must allege facts showing that no probable cause existed to arrest him. See Cabrera v. City of 13 Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998). 14 As previously noted, Plaintiff appears to challenge the criminal charges, and his ultimate 15 conviction/sentence resulting therefrom. However, Plaintiff does not appear to challenge the 16 arrest itself. That is, the Court can discern no factual allegation that there was no probable cause 17 to support the initial arrest. Similarly, Plaintiff appears to challenge the filing of an amended 18 felony complaint against him, but the reasons for the challenge are unclear. Absent further 19 allegations, such as facts challenging the existence of probable cause to arrest, Plaintiff has not 20 alleged facts sufficient to state a claim for wrongful arrest. 21 Relatedly, a claim for false imprisonment does not ordinarily state an independent claim 22 under § 1983, absent a cognizable claim for wrongful arrest. See Baker v. McCollan, 443 U.S. 23 137, 142–45 (1979). As Plaintiff has not stated a claim for false arrest, he may not maintain an 24 independent claim for false imprisonment. 25 D. Eight Amendment Conditions of Confinement 26 The Eighth Amendment proscribes a freedom from cruel and unusual punishment. U.S. 27 Const. amend. VIII. The prohibition of cruel and unusual punishment applies only after 28 conviction and sentencing. Lee, 250 F.3d at 686. Plaintiff claims his Eight Amendment rights 1 are violated due to “excessive confinement.” (ECF No. 13 at 4.) However, due to the lack of 2 factual allegations, the Court cannot determine with certainty what basis Plaintiff asserts for his 3 Eighth Amendment claim. For example, Plaintiff does not allege any facts describing how his 4 confinement was “excessive,” other than that his prison sentence is too long. Even if such 5 allegations did not trigger Heck, Plaintiff does not allege facts showing why his sentence is too 6 long, thus, he fails to allege sufficient facts to state a claim for an Eighth Amendment violation. 7 E. Due Process 8 “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations 9 of life, liberty, or property; and those who seek to invoke its procedural protection must establish 10 that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). The due 11 process clause of the Fourteenth Amendment protects two distinct but related rights: procedural 12 due process and substantive due process. Albright v. Oliver, 510 U.S. 266, 272 (1994). 13 To state a procedural due process claim, Plaintiff must establish three elements: (1) a 14 liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the 15 government; and (3) lack of process.” Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th 16 Cir. 1993). 17 To state a substantive due process claim, a plaintiff must plead both a deprivation of his 18 liberty and conscience-shocking behavior by the government. Brittain v. Hansen, 451 F.3d 982, 19 991 (9th Cir. 2006). More specifically, a plaintiff “must plead that the government’s action was 20 ‘clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, 21 morals, or general welfare.’ ” Lebbos v. Judges of Superior Ct., 883 F.2d 810, 818 (9th Cir. 22 1989) (quoted source omitted). To meet the “arbitrary and unreasonable” element, a plaintiff may 23 plead either: (1) an official acting with deliberate indifference to the risk of harm; or (2) a more 24 demanding showing that the official acted with the purpose to harm the plaintiff for reasons 25 unrelated to legitimate law enforcement objectives. Porter v. Osborn, 546 F.3d 1131, 1137 (9th 26 Cir. 2008); Tatum v. Moody, 768 F.3d 806, 820 (9th Cir. 2014). Which test to apply depends on 27 whether the circumstances are such that “actual deliberation is practical.” Porter, 546 F.3d at 28 1137. Where the police officers have the opportunity for actual deliberation, id. at 1138, the 1 deliberate indifference standard would apply. Lemire v. Cal. Dept. of Corr. & Rehab., 726 F.3d 2 1062, 1075 (9th Cir. 2013). 3 Furthermore, the Supreme Court has held that if a constitutional claim is covered by a 4 specific constitutional provision, such as the Fourth Amendment, the claim must be analyzed 5 under the standard appropriate to that specific provision, not under the rubric of substantive due 6 process.” U.S. v. Lanier, 520 U.S. 259, 272, n.7 (1997) (citing Graham v. Connor, 490 U.S. 386, 7 394 (1989)); see also Cnty. of Sacramento v. Lewis, 523 U.S. 833, 842–43 (1998) (citing 8 Graham, 490 U.S. at 395 (“All claims that law enforcement officers have used excessive force— 9 deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen 10 should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than 11 under a ‘substantive due process’ approach.”) (emphases in original)); Price v. Sery, 513 F.3d 12 962, 967 (9th Cir. 2008) (claims alleging excessive force in making an arrest are analyzed under 13 the Fourth Amendment “objective reasonableness” standard rather than under a substantive due 14 process standard); Hazlett v. Dean, No. CIV 2:12-01782 WBS DAD, 2013 WL 1749924, at *2 15 (E.D. Cal. Apr. 23, 2013) (dismissing “generalized substantive due process claims under the 16 Fourteenth Amendment” where the First and Fourth Amendments were “explicit textual sources 17 of constitutional protection in this action”). 18 Here, Plaintiff references the phrase “due process” and suggests some violation of this 19 right occurred in some manner. However, as no facts are alleged in support of such a claim, it is 20 unclear how Plaintiff contends his due process rights were violated. Furthermore, to the extent he 21 claims his Fourteenth Amendment rights were violated based on his false arrest and imprisonment 22 claim, Plaintiff’s claim would arise from the Fourth, not Fourteenth Amendment. 23 F. Double Jeopardy 24 Finally, the Court notes Plaintiff appears to claim his protections against double jeopardy 25 were violated because the criminal complaint filed against him initially charged him with 26 attempted murder, but that the complaint was later amended to charge first degree murder instead. 27 The Court notes claims of double jeopardy are typically raised in habeas actions. Nonetheless, 28 even if these allegations did not trigger Heck, Plaintiff’s claim does not invoke double jeopardy. 1 “The [Fifth Amendment’s] Double Jeopardy Clause is designed to protect the rights of the 2 defendant, both against double punishment for the same offense, and against being twice put to 3 trial for the same offense.” U.S. v. Gamble, 607 F.2d 820, 823 (9th Cir. 1979) (citing Abney v. 4 U.S., 431 U.S. 651, 660–61 (1977)); U.S. Const. amend. V. “As a general rule, trial on an 5 offense is barred by prior trial and conviction of a lesser-included offense based on the same 6 transaction.” U.S. v. Stearns, 707 F.2d 391, 393 (9th Cir. 1983). 7 Here, however, Plaintiff does not allege he was convicted of attempted murder and then 8 tried and convicted for first degree murder, nor does he allege he was tried for attempted murder, 9 acquitted, and then tried for first degree murder. Thus, Plaintiff has not alleged facts showing that 10 he is serving a double sentence for the same crime or was doubly prosecuted. In fact, Plaintiff 11 does not allege any facts about his trial. Indeed, due to the scarcity of factual allegations in the 12 FAC, the nature of Plaintiff’s arrest, charges, conviction, and sentencing remain unclear. 13 Nonetheless, the Court does note that, to the extent Plaintiff claims his sentence was improperly 14 calculated or extended by the prison (or Warden Shirley), double jeopardy is inapplicable. See, 15 e.g., Johnson v. Coursey, 487 Fed. App’x 327 (9th Cir. 2012) (holding the prohibition against 16 double jeopardy does not apply to prison disciplinary sanctions); Sego v. Ricketts, 886 F.2d 334 17 (9th Cir. 1989) (holding re-computation of prisoner’s sentence to omit good time credit for 18 presentence incarceration did not constitute “multiple punishment” in violation of 19 the double jeopardy clause). The Court therefore concludes the FAC does not implicate a claim 20 under the double jeopardy clause. 21 G. Leave to Amend 22 Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend “shall be freely 23 given when justice so requires,” because “the court must remain guided by the underlying 24 purpose of Rule 15 … to facilitate decisions on the merits, rather than on the pleadings or 25 technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and 26 internal quotation marks omitted). Nevertheless, a district court need not grant leave to amend 27 where the amendment would unduly prejudice the opposing party, cause undue delay, or be futile, 28 or if the party seeking amendment has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ’g, 1 512 F.3d 522, 532 (9th Cir. 2008) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). “The 2 decision of whether to grant leave to amend nevertheless remains within the discretion of the 3 district court.” Id. 4 In this case, the Court previously issued findings and recommendations that the complaint 5 not only failed to allege facts sufficient to state any cognizable claim, but the face of the 6 complaint also demonstrated the entirety of Plaintiff’s claims are Heck-barred because Plaintiff 7 remains incarcerated on the conviction that is the basis of the instant lawsuit, and he has not 8 successfully appealed to have the conviction overturned. See Cabrera, 159 F.3d at 380 9 (Heck bars claims of false arrest and false imprisonment until conviction invalidated). In 10 response to the Court’s findings and recommendations, Plaintiff filed the FAC. While the FAC 11 omits the majority of factual allegations previously pleaded, and has dropped entity defendants 12 and claims the Court previously recommended be dismissed without leave to amend on 13 alternative grounds, Plaintiff still fails to allege facts sufficient to state a cognizable claim, 14 demonstrating he is unable to cure his pleading deficiencies through amendment. More 15 importantly, the same fatal defects remain with respect to the Heck-bar. Namely, absent 16 invalidation of the conviction, amendment would be futile. See Beets v. Cnty. of L.A., 669 F.3d 17 1038, 1041–42 (9th Cir. 2012), disapproved of on other grounds, by Lemos v. Cnty. of Sonoma, 18 40 F.4th 1002 (9th Cir. 2022) (holding if a plaintiff’s § 1983 claims are barred by Heck, “filing an 19 amended complaint would be a futile act.”); see also Vandament v. Duncan, 402 Fed. App’x. 224, 20 224 (9th Cir. 2010) (affirming district court’s dismissal of Heck-barred claims without leave to 21 amend “[b]ecause amendment would be futile”). Accordingly, leave to amend should be denied. 22 IV. 23 CONCLUSION AND RECOMMENDATIONS 24 For the foregoing reasons, the first amended complaint fails to state any cognizable claim 25 for violations of Plaintiff’s constitutional rights. Furthermore, for the reasons previously 26 discussed, the Court finds amendment would not cure aforementioned deficiencies and is 27 therefore futile. Lopez, 203 F.3d at 1130; Cato, 70 F.3d at 1106. 28 /// 1 Accordingly, IT IS HEREBY RECOMMENDED that 2 1. The first amended complaint (ECF No. 13) be DISMISSED, without prejudice, for 3 failure to state a claim; and 4 2. The Clerk of the Court be DIRECTED to CLOSE this action. 5 These findings and recommendations are submitted to the District Judge assigned to this 6 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 7 | (14) days of service of this recommendation, Plaintiff may file written objections to these 8 | findings and recommendations with the Court. Such a document should be captioned “Objections 9 | to Magistrate Judge’s Findings and Recommendations.” The District Judge will review the 10 | Magistrate Judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff 11 is advised that failure to file objections within the specified time may result in the waiver of rights 12 | on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 13 | 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 IT IS SO ORDERED. DAM Le 16 | Dated: _April 6, 2023 _ OO 4 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 15