(PC) Kelly v. People of the State of CA ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL BRYAN KELLY, No. 2:21-cv-01369-CKD P 12 Plaintiff, 13 v. ORDER AND 14 PEOPLE OF THE STATE OF FINDINGS AND RECOMMENDATIONS CALIFORNIA, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court pursuant to 19 28 U.S.C. § 636(b)(1) and Local Rule 302. 20 I. Screening Standard 21 As plaintiff was previously advised, the court is required to screen complaints brought by 22 prisoners seeking relief against a governmental entity or officer or employee of a governmental 23 entity. 28 U.S.C. § 1915A(a). The court will independently dismiss a complaint or portion 24 thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to state 25 a claim upon which relief may be granted, or that seek monetary relief from a defendant who is 26 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 27 II. Allegations in the Second Amended Complaint 28 Plaintiff is a state prisoner following his conviction in the Butte County Superior Court. 1 In this civil action, plaintiff sues his former criminal defense attorneys, two California state court 2 judges, the Butte County District Attorney who prosecuted him, the Governor of California, the 3 Warden of Pelican Bay State Prison where plaintiff is housed, as well as state agencies that 4 plaintiff contends failed to prevent the violation of his constitutional rights. According to 5 plaintiff, false criminal charges were initiated by defendant Stanley Smith who conspired with the 6 remaining defendants to secure plaintiff’s felony convictions. However, defendant Smith is a 7 private citizen and is not a state actor for purposes of a § 1983 action. 8 By way of relief, plaintiff seeks compensatory and punitive damages, injunctive relief in 9 the form of a federal investigation of each defendant, a search warrant for evidence supporting his 10 claims, and the reversal of his criminal conviction. Plaintiff also requests that the minor children 11 in the custody of defendant Smith “be placed in a safe residence” and that defendant Smith be 12 ordered to immediately register as a sex offender. 13 III. Analysis 14 After being provided with the relevant legal standards, plaintiff has been unable to fix the 15 deficiencies identified in the court’s prior screening order. ECF No. 11. As plaintiff was 16 previously advised, the claims in the present action cannot proceed unless and until his criminal 17 conviction is invalidated as required by Heck v. Humphrey, 512 U.S. 477 (1994). See also 18 Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (emphasizing that “a state prisoner’s § 1983 19 action is barred (absent prior invalidation)—no matter the relief sought (damages or equitable 20 relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal 21 prison proceedings)—if success in that action would necessarily demonstrate the invalidity of 22 confinement or its duration.”). Additionally, many of the named defendants are absolutely 23 immune from a civil suit for damages. See Imbler v. Pachtman, 424 U.S. 409 (1976); Pierson v. 24 Ray, 386 U.S. 547 (1967); Stevens v. Rifkin, 608 F.Supp. 710, 728 (N.D. Cal. 1984) (finding that 25 even charges of malicious prosecution, falsification of evidence, coercion of perjured testimony 26 and concealment of exculpatory evidence will be dismissed on grounds of prosecutorial 27 immunity.). Additionally, defendant Smith is not a proper defendant in this § 1983 action since 28 he was not acting under color of state law when he initiated the allegedly false charges against 1 plaintiff. See West v. Atkins, 487 U.S.42, 48 (1988). Conduct by a private party, no matter how 2 wrongful, is not actionable under § 1983. See Holly v. Scott, 434 F.3d 287, 291-92 (4th Cir. 3 2006). For all these reasons, the undersigned recommends dismissing plaintiff’s second amended 4 complaint for failing to state a claim and for seeking relief from defendants who are immune from 5 suit. See 18 U.S.C. § 1915A(b). 6 Once the court finds that a complaint or claim should be dismissed for failure to state a 7 claim, the court has discretion to dismiss with or without leave to amend. Leave to amend should 8 be granted if it appears possible that the defects in the complaint could be corrected, especially if 9 a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); Cato v. 10 United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to 11 amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that 12 the deficiencies of the complaint could not be cured by amendment.” (citation omitted). 13 However, if, after careful consideration, it is clear that a claim cannot be cured by amendment, 14 the court may dismiss without leave to amend. Cato, 70 F.3d at 1105-06. 15 It appears to the court that further amendment of this case would be futile because the 16 deficiencies cannot be cured. Therefore, the undersigned recommends that the amended 17 complaint be dismissed without further leave to amend. Klamath-Lake Pharm. Ass’n v. Klamath 18 Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall 19 be freely given, the court does not have to allow futile amendments). 20 IV. Plain Language Summary for Pro Se Party 21 The following information is meant to explain this order in plain English and is not 22 intended as legal advice. 23 The court has reviewed your second amended complaint and determined that it does not 24 state any claim for relief against any defendant. It is recommended that your complaint be 25 dismissed without further leave to amend. 26 If you disagree with this recommendation, you have 14 days to explain why it is not the 27 correct outcome in your case. Label your explanation “Objections to Magistrate Judge’s Findings 28 and Recommendations.” The district judge assigned your case will then review the case and 1 || make the final decision in this matter. 2 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign this 3 || matter to a district court judge. 4 IT IS FURTHER RECOMMENDED that plaintiff's second amended complaint be 5 || dismissed without further leave to amend. 6 These findings and recommendations are submitted to the United States District Judge 7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 8 | after being served with these findings and recommendations, any party may file written 9 || objections with the court and serve a copy on all parties. Such a document should be captioned 10 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 11 || objections shall be served and filed within fourteen days after service of the objections. The 12 || parties are advised that failure to file objections within the specified time may waive the right to 13 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 14 | Dated: March 31, 2022 / a □□ / a Ly a 1s CAROLYN K DELANEY 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 | 12/kell1369.F&R.docx 23 24 25 26 27 28