Anderson v. Scisento

Opinion

* * *

BLAKE L. ANDERSON, Case No. 2:18-cv-02376-MMD-EJY

Plaintiff, ORDER v. JUDE J. SCISENTO, et al., Defendants. Plaintiff Blake L. Anderson filed an informa pauperis (“IFP”) application and a complaint against Judge Scisento and three of Plaintiff’s formerly appointed attorneys, Patricia Doyle, Dean Kajioka and Monique McNeil. Plaintiff has brought claims under 42 U.S.C. § 1983 and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), alleging that Scisento did not have jurisdiction to conduct his trial and illegally appointed counsel, and that the remaining Defendants failed to correct Scisento’s unlawful conduct. (ECF No. 6 at 3-7.) Before the Court is the Report and Recommendation (“R&R”) of United States Magistrate Judge George Foley, Jr.1 (ECF No. 5), recommending that the Court dismiss the entire Complaint (ECF No. 62). Plaintiff had until August 9, 2019 to file an objection. To date, no objection has been filed. For that reason, and because the Court agrees with Judge Foley, the Court will adopt the R&R. This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 1Due to the retirement of Judge Foley, this case has been reassigned to United States Magistrate Judge Elayna J. Youchah. (ECF No. 7.)

2The R&R directed the Clerk to file the Complaint. (ECF No. 5 at 7; see also ECF No. 6.) issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (“De novo review of the magistrate judges’ findings and recommendations is required if, but only if, one or both parties file objections to the findings and recommendations.”); Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (providing that the court “need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation”). While Plaintiff has failed to timely object to the R&R, the Court has nevertheless conducted a de novo review to determine whether to adopt the R&R. Judge Foley recommended that Plaintiff’s § 1983 claim against Scisento be dismissed with prejudice because it concerns conduct that Scisento undertook in his official judicial capacity, thereby entitling Scisento to judicial immunity. (ECF No. 8 at 3-4). See, e.g., Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc). Judge Foley also recommended that Plaintiff’s § 1983 claims against the remaining Defendants be dismissed with prejudice because—as public defenders and a court-appointed attorney—those Defendants did not act under color of state law, as required for a claim under § 1983. (ECF No. 8 at 4-5.) See Polk County v. Dodson, 454 U.S. 312, 320-25 (1981); Crawford v. Sherrer, 2003 WL 21018238, at *1 (N.D. Cal. Apr. 24, 2003). To the extent Plaintiff seeks relief regarding his criminal conviction, Judge Foley recommended that such request be dismissed without prejudice because it is Heck-barred, and Plaintiff has not shown his conviction has been invalidated in any way. (ECF No. 8 at 5) See Heck v. Humphrey, 512 U.S. 477, 480, 487, 489-90. (1994) (holding that a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated). Last, Judge Foley recommended that Plaintiff’s RICO claims be dismissed with prejudice because (1) his allegations fail to satisfy Federal Rule of Civil Procedure 9(b), (2) Plaintiff does not identify a criminal violation—which is required for a RICO claim—and (3) it is clear that Plaintiff cannot cure deficiencies in his Complaint. /// (ECF No. 8 at 5-6.) 18 U.S.C. § 1962(c); see also Sanford v. MemberWorks, Inc., 625 F.3d 550, 557-58 (9th Cir. 2010). Having reviewed the R&R (ECF No. 5) and Complaint (ECF No. 6), the Court agrees with Judge Foley and adopts the R&R in full. It is therefore ordered, adjudged, and decreed that the Report and Recommendation of Magistrate Judge George Foley, Jr (ECF No. 5) is accepted and adopted in full. It is further ordered that the Complaint (ECF No. 6) is dismissed with prejudice as to the § 1983 and RICO claims, and without prejudice as to any claims challenging Plaintiff's conviction. The Clerk of Court is directed to enter judgment in accordance with this order and close this case. DATED THIS 3° day of February 2020. IRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE