1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 KEVIN L. MCCULLOM, 11 Case No. 21-01172 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH v. LEAVE TO AMEND 13
14 JHON KEEN, 15 Defendant. 16
17 18 Plaintiff, a state prisoner currently confined at the Santa Rita Jail in Dublin, 19 California, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against 20 Chief Probation Officer “Jhon Keen”1 of the San Mateo County Probation Department. 21 Dkt. Not. 4. Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in 22 a separate order. 23 /// 24 /// 25 /// 26
27 1 Plaintiff spells Defendant’s name as “Jhon Keen,” but the proper name for the Chief 1 DISCUSSION 2 A. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 14 B. Plaintiff’s Claims 15 Plaintiff’s handwritten complaint is over 25 pages long and contains allegations that 16 are disorganized and incoherent. Dkt. No. 4. For example, he begins with alleging that 17 Judge Paul Delucchi “enjoys 100% immunity from civil law suit in equity” and yet accuses 18 him of facilitating some act of malfeasance by “Jhon Keen,” the Chief Probation Officer of 19 San Mateo County. Dkt. No. 4 at 2-3. Some of Plaintiff’s subsequent allegations include 20 the following: that officers of the Oakland Police Department fabricated police reports and 21 procured perjured statements, id. at 3; that information regarding a plea bargain agreement 22 has been inaccurately retained in the “computer data base,” Dkt. No. 4-1 at 1, 6; illegal 23 search and seizure, id. at 9; unlawful solicitations for his murder for hire on the dark web, 24 id. at 11; discrimination in housing placement, id. at 13; and wrongful acts by officers of 25 the Livermore Police Department in connection with the death of a “young lady killed in a 26 train accident,” id. at 15, 18. Plaintiff seeks exemplary damages, as well as compensatory 1 There are several problems with this complaint. First of all, none of these claims 2 are sufficiently plead for the Court to discern a cognizable claim under § 1983, especially 3 against the sole named defendant, Mr. Keen. In addition, none of the allegations are 4 obviously related, and therefore the complaint appears to violate Rules 18(a) and 20(a) of 5 the Federal Rules of Civil Procedure. “A party asserting a claim, counterclaim, 6 crossclaim, or third-party claim may join, as independent or alternative claims, as many 7 claims as it has against an opposing party.” Fed. R. Civ. P. 18(a). Accordingly, “multiple 8 claims against a single party are fine, but Claim A against Defendant 1 should not be 9 joined with unrelated Claim B against Defendant 2.” George v. Smith, 507 F.3d 605, 607 10 (7th Cir. 2007). “Unrelated claims against different defendants belong in different suits,” 11 not only to prevent the sort of “morass” that a multi-claim, multi-defendant suit can 12 produce, “but also to ensure that prisoners pay the required filing fees – for the Prison 13 Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner 14 may file without prepayment of required fees.” Id. (citing 28 U.S.C. § 1915(g)). Rule 15 20(a) provides that parties may be joined as defendants in one action only “if any right to 16 relief is asserted against them jointly, severally, or in the alternative with respect to or 17 arising out of the same transaction, occurrence, or series of transactions or occurrences; 18 and any question of law or fact common to all defendants will arise in the action.” Fed. R. 19 Civ. P. 20(a)(2). 20 Secondly, the references to various criminal convictions indicate that the related 21 claim for damages may possibly be barred by Heck v. Humphrey, 512 U.S. 477, 486-487 22 (1994) (to recover damages for an allegedly unconstitutional conviction or imprisonment 23 or for other harm caused by actions who unlawfulness would render a conviction or 24 sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction or sentence 25 has been reversed on direct appeal, expunged by executive order, declared invalid by a 26 state tribunal authorized to make such determination, or called into question by a federal 1 to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. 2 Id. at 487. 3 Lastly, Plaintiff’s sole defendant is a probation officer, but it is unclear from the 4 complaint how Mr. Keene violated Plaintiff’s constitutional or federal rights. Furthermore, 5 the Ninth Circuit has held that probation officers possess an absolute judicial immunity 6 from damage suits under § 1983 for official functions bearing a close association to the 7 judicial process. Demoran v. Witt, 781 F.2d 155, 156-58 (9th Cir. 1985) (immunity for 8 preparing reports for use by state courts). The United States Supreme Court has taken a 9 “functional approach” to the question of whether absolute immunity applies in a given 10 situation, meaning that it looks to “the nature of the function performed, not the identity of 11 the actor who performed it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (quoting 12 Forrester v. White, 484 U.S. 219, 229 (1988)). Thus, state actors are granted absolute 13 immunity from damages liability in suits under § 1983 only for actions taken while 14 performing a duty functionally comparable to one for which officials were immune at 15 common law. Miller v. Gammie, 335 F.3d 889, 897 (9th Cir. 2003).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 KEVIN L. MCCULLOM, 11 Case No. 21-01172 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH v. LEAVE TO AMEND 13
14 JHON KEEN, 15 Defendant. 16
17 18 Plaintiff, a state prisoner currently confined at the Santa Rita Jail in Dublin, 19 California, filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 against 20 Chief Probation Officer “Jhon Keen”1 of the San Mateo County Probation Department. 21 Dkt. Not. 4. Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in 22 a separate order. 23 /// 24 /// 25 /// 26
27 1 Plaintiff spells Defendant’s name as “Jhon Keen,” but the proper name for the Chief 1 DISCUSSION 2 A. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 14 B. Plaintiff’s Claims 15 Plaintiff’s handwritten complaint is over 25 pages long and contains allegations that 16 are disorganized and incoherent. Dkt. No. 4. For example, he begins with alleging that 17 Judge Paul Delucchi “enjoys 100% immunity from civil law suit in equity” and yet accuses 18 him of facilitating some act of malfeasance by “Jhon Keen,” the Chief Probation Officer of 19 San Mateo County. Dkt. No. 4 at 2-3. Some of Plaintiff’s subsequent allegations include 20 the following: that officers of the Oakland Police Department fabricated police reports and 21 procured perjured statements, id. at 3; that information regarding a plea bargain agreement 22 has been inaccurately retained in the “computer data base,” Dkt. No. 4-1 at 1, 6; illegal 23 search and seizure, id. at 9; unlawful solicitations for his murder for hire on the dark web, 24 id. at 11; discrimination in housing placement, id. at 13; and wrongful acts by officers of 25 the Livermore Police Department in connection with the death of a “young lady killed in a 26 train accident,” id. at 15, 18. Plaintiff seeks exemplary damages, as well as compensatory 1 There are several problems with this complaint. First of all, none of these claims 2 are sufficiently plead for the Court to discern a cognizable claim under § 1983, especially 3 against the sole named defendant, Mr. Keen. In addition, none of the allegations are 4 obviously related, and therefore the complaint appears to violate Rules 18(a) and 20(a) of 5 the Federal Rules of Civil Procedure. “A party asserting a claim, counterclaim, 6 crossclaim, or third-party claim may join, as independent or alternative claims, as many 7 claims as it has against an opposing party.” Fed. R. Civ. P. 18(a). Accordingly, “multiple 8 claims against a single party are fine, but Claim A against Defendant 1 should not be 9 joined with unrelated Claim B against Defendant 2.” George v. Smith, 507 F.3d 605, 607 10 (7th Cir. 2007). “Unrelated claims against different defendants belong in different suits,” 11 not only to prevent the sort of “morass” that a multi-claim, multi-defendant suit can 12 produce, “but also to ensure that prisoners pay the required filing fees – for the Prison 13 Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner 14 may file without prepayment of required fees.” Id. (citing 28 U.S.C. § 1915(g)). Rule 15 20(a) provides that parties may be joined as defendants in one action only “if any right to 16 relief is asserted against them jointly, severally, or in the alternative with respect to or 17 arising out of the same transaction, occurrence, or series of transactions or occurrences; 18 and any question of law or fact common to all defendants will arise in the action.” Fed. R. 19 Civ. P. 20(a)(2). 20 Secondly, the references to various criminal convictions indicate that the related 21 claim for damages may possibly be barred by Heck v. Humphrey, 512 U.S. 477, 486-487 22 (1994) (to recover damages for an allegedly unconstitutional conviction or imprisonment 23 or for other harm caused by actions who unlawfulness would render a conviction or 24 sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction or sentence 25 has been reversed on direct appeal, expunged by executive order, declared invalid by a 26 state tribunal authorized to make such determination, or called into question by a federal 1 to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. 2 Id. at 487. 3 Lastly, Plaintiff’s sole defendant is a probation officer, but it is unclear from the 4 complaint how Mr. Keene violated Plaintiff’s constitutional or federal rights. Furthermore, 5 the Ninth Circuit has held that probation officers possess an absolute judicial immunity 6 from damage suits under § 1983 for official functions bearing a close association to the 7 judicial process. Demoran v. Witt, 781 F.2d 155, 156-58 (9th Cir. 1985) (immunity for 8 preparing reports for use by state courts). The United States Supreme Court has taken a 9 “functional approach” to the question of whether absolute immunity applies in a given 10 situation, meaning that it looks to “the nature of the function performed, not the identity of 11 the actor who performed it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (quoting 12 Forrester v. White, 484 U.S. 219, 229 (1988)). Thus, state actors are granted absolute 13 immunity from damages liability in suits under § 1983 only for actions taken while 14 performing a duty functionally comparable to one for which officials were immune at 15 common law. Miller v. Gammie, 335 F.3d 889, 897 (9th Cir. 2003). Depending on 16 whether the probation officer’s actions which gave rise to the suit are sufficiently similar to 17 those for which absolute immunity was granted at common law, e.g., judges, prosecutors, 18 trial witnesses, and jurors, a probation officer may or may not be absolutely immune under 19 Demoran. 20 Plaintiff shall be granted one opportunity to file an amended complaint to cure the 21 deficiencies discussed above. Plaintiff must comply with Rules 18(a) and 20(a) of the 22 Federal Rules of Civil Procedure. Furthermore, Federal Rule of Civil Procedure 8(a)(2) 23 requires only “a short and plain statement of the claim showing that the pleader is entitled 24 to relief.” “Specific facts are not necessary; the statement need only ‘“give the defendant 25 fair notice of what the . . . claim is and the grounds upon which it rests.”’” Erickson v. 26 Pardus, 551 U.S. 89, 93 (2007) (citations omitted). “Factual allegations must be enough to 1 U.S. 544, 553-56 (2007) (citations omitted). To state a claim that is plausible on its face, a 2 plaintiff must allege facts that “allow[] the court to draw the reasonable inference that the 3 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 4 (2009). Liability may be imposed on an individual defendant under § 1983 only if Plaintiff 5 can show that the defendant proximately caused the deprivation of a federally protected 6 right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). A person deprives another 7 of a constitutional right within the meaning of section 1983 if he does an affirmative act, 8 participates in another’s affirmative act or omits to perform an act which he is legally 9 required to do, that causes the deprivation of which the plaintiff complaints. See Leer, 844 10 F.2d at 633. 11 12 CONCLUSION 13 For the foregoing reasons, the Court orders as follows: 14 1. The complaint is DISMISSED with leave to amend. Within twenty-eight 15 (28) days of the date this order is filed, Plaintiff shall file an amended complaint to correct 16 the deficiencies described above. The amended complaint must include the caption and 17 civil case number used in this order, Case No. 21-01172 BLF (PR), and the words 18 “AMENDED COMPLAINT” on the first page. If using the court form complaint, Plaintiff 19 must answer all the questions on the form in order for the action to proceed. The amended 20 complaint supersedes the original, the latter being treated thereafter as non-existent. 21 Ramirez v. Cty. Of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). Consequently, 22 claims not included in an amended complaint are no longer claims and defendants not 23 named in an amended complaint are no longer defendants. See Ferdik v. Bonzelet, 963 24 F.2d 1258, 1262 (9th Cir.1992). 25 2. Failure to respond in accordance with this order in the time provided 26 will result in the dismissal with prejudice of this action for failure to state a claim, 1 3. The Clerk shall include two copies of the court’s complaint with a copy of 2 || this order to Plaintiff. 3 IT IS SO ORDERED. 4 || Dated: __ June 28, 2021 feb, Lua hoon) BETH LABSON FREEMAN 5 United States District Judge 6 7 8 9 10 1] 12
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