(PC) Howell v. Schubert

• Court: District Court, E.D. California
• Decided: March 16, 2021
• Docket: 2:19-cv-00266
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KAREEM J. HOWELL, No. 2: 19-cv-0266 KJM KJN P 12 Plaintiff, 13 v. AMENDED FINDINGS AND RECOMMENDATIONS 14 ANN MARIE SCHUBERT, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. On December 14, 2020, the undersigned recommended that defendants’ 19 motion to dismiss be granted. (ECF No. 35.) On December 28, 2020, defendants filed objections 20 to the findings and recommendations. (ECF No. 36.) 21 Based on the undersigned’s review of defendants’ objections, the undersigned issues these 22 amended findings and recommendations, again recommending that defendants’ motion to dismiss 23 be granted.1 24 //// 25

1 In the December 14, 2020 findings and recommendations, the undersigned did not decide 26 defendants’ argument that plaintiff’s Sixth Amendment claim is barred by Heck v. Humphrey, 27 512 U.S. 477 (1994). In these amended findings and recommendations, the undersigned finds that plaintiff’s Sixth Amendment claim is Heck barred and recommends that defendants’ motion 28 to dismiss be granted on these grounds. 1 Legal Standard for 12(b)(6) Motion 2 A complaint may be dismissed for “failure to state a claim upon which relief may be 3 granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a 4 plaintiff must allege “enough facts to state a claim for relief that is plausible on its face.” Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the 6 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 7 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 8 (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability 9 requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully. 10 Iqbal, 556 U.S. at 678. 11 Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal 12 theory; or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co. v. Space 13 Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013). Dismissal also is appropriate if the complaint 14 alleges a fact that necessarily defeats the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 15 (9th Cir. 1984). 16 Pro se pleadings are held to a less-stringent standard than those drafted by lawyers. 17 Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). However, the court need not accept as 18 true unreasonable inferences or conclusory legal allegations cast in the form of factual 19 allegations. See Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (citing Western Mining 20 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). 21 In ruling on a motion to dismiss filed pursuant to Rule 12(b)(6), the court “may generally 22 consider only allegations contained in the pleadings, exhibits attached to the complaint, and 23 matters properly subject to judicial notice.” Outdoor Media Group, Inc. v. City of Beaumont, 506 24 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Although the court may not 25 consider a memorandum in opposition to a defendant’s motion to dismiss to determine the 26 propriety of a Rule 12(b)(6) motion, see Schneider v. Cal. Dep’t of Corrections, 151 F.3d 1194, 27 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding 28 whether to grant leave to amend. See, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 1 2003). 2 Plaintiff’s Allegations 3 This action proceeds on plaintiff’s original complaint against defendant Sacramento 4 County District Attorney Schubert and Sacramento County Deputy District Attorney Tucker.2 5 (ECF No. 1.) Plaintiff was housed at California State Prison-Sacramento (“CSP-Sac”) when the 6 alleged deprivations occurred. (Id. at 5.) 7 Plaintiff alleges that on January 25, 2018, defendants Schubert and Tucker filed a felony 8 complaint charging plaintiff with three counts of battery. (Id.) On April 13, 2018, Correctional 9 Officer O’Riley told plaintiff that he (plaintiff) had to attend court at 10:00 a.m. at the courthouse 10 in Sacramento. (Id.) Instead, at 9:30 a.m., Correctional Officer O’Riley took plaintiff to a back 11 supply storage room at CSP-Sac. (Id.) 12 In the storage room, plaintiff sat at a table in front of a television screen where a judge 13 appeared. (Id. at 5-6.) A public defender and two correctional employees sat at the table with 14 plaintiff. (Id. at 6.) Plaintiff was informed by the correctional employees that this was his court 15 appearance. (Id.) The public defender never spoke to plaintiff. (Id.) 16 Plaintiff asked the public defender and the correctional employees, “Where is my court 17 appointed attorney, Ms. Kelly Babineau?” (Id.) The correctional employees told plaintiff that 18 Kelly Babineau was not allowed into the prison because she was a private attorney. (Id.) 19 Plaintiff was told that Kelly Babineau was present in the courtroom at the courthouse in 20 Sacramento, along with the judge and defendant Tucker. (Id.) 21 Plaintiff was informed that if he had any questions for his attorney, he would have to 22 inform the public defender or the correctional employees, and they would relay his questions to 23 his attorney over the television monitor. (Id.) Plaintiff had no confidential access to his court 24 appointed attorney, Kelly Babineau. (Id.) 25 Plaintiff was informed that the legal name for his television appearance was “video court.” 26 (Id. at 7.) Plaintiff alleges that he heard Kelly Babineau over the television speaker but he could 27

28 2 Defendants O’Riley and Baughman have been dismissed. (ECF No. 15.) 1 not see her. (Id.) Plaintiff alleges that he was not allowed to “communicate with [Kelly 2 Babineau] directly” on April 13, 2018. (Id.) 3 Plaintiff alleges that he could not understand the charges being brought against him by the 4 prosecutor and could not access his attorney for legal advice at the April 13, 2018 hearing. (Id.) 5 Plaintiff alleges that defendants Schubert and Tucker created a policy at CSP-Sac to 6 prosecute inmates by video court in the back of a supply room, without direct connection with 7 their attorneys. (Id. at 9.) Plaintiff alleges that this policy violated his Sixth Amendment right to 8 confidentially communicate with his attorney and his right to physically appear at the April 13, 9 2018 court proceeding. (Id.) 10 Plaintiff seeks money damages and declaratory relief. (Id. at 12.) 11 Defendants’ Request for Judicial Notice 12 Defendants request that the court take judicial of a printout of the Sacramento County 13 Superior Court’s Case Information for People v. Kareem Howell, Case no. 18FE001413, 14 available online. The “case information” appears to be the court docket. A copy of this docket is 15 attached to the request for judicial notice. The undersigned takes judicial notice of this docket. 16 See Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (judicial notice may be 17 taken of “undisputed matters of public record, including documents on file in federal or state 18 courts.”) 19 Defendants request that the court take judicial notice of the certified reporter’s transcripts 20 of the proceedings held on April 13, 2018, and June 27, 2019 in People v. Kareem Howell, Case 21 No. 18FE001413. Copies of these transcripts are attached to the request for judicial notice. The 22 undersigned takes judicial notice of these transcripts. See Pickup v. Brown, 2012 WL 6024387, at 23 *3 (E.D. Cal. Dec. 4, 2012) (“Transcripts from other court proceedings are proper subjects of 24 judicial notice.”) (citations omitted). The content of these transcripts is undisputed. See Lee v. 25 City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001) (under Federal Rule of Evidence 201, 26 courts may take judicial notice of facts contained in public records that are not subject to reasonable 27 dispute). 28 //// 1 The judicial notice of these documents does not convert defendants’ motion to dismiss to 2 a summary judgment motion. See United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003) 3 (a court’s consideration of documents attached to a complaint or incorporated by reference or 4 matter of judicial notice will not convert a motion to dismiss into a motion for summary 5 judgment). 6 Defendants’ Motion to Dismiss 7 Did Defendants Create the At-Issue Video Policy? 8 As stated above, plaintiff alleges that defendants Schubert and Tucker created a policy 9 that permitted the prosecution of inmates in the back room at CSP-Sac by video. Plaintiff alleges 10 that this policy violated his Sixth Amendment right to communicate confidentially with his 11 attorney. Defendants move to dismiss this claim on the grounds that they did not create the at- 12 issue video policy. Defendants state that the California State Legislature statutorily authorized 13 video court appearances when it enacted California Penal Code § 977(c). 14 California Penal Code § 977(c)(1) provides, in relevant part, 15 The court may permit the initial court appearance and arraignment of defendants held in any state, county, or local facility within the 16 county on felony or misdemeanor charges, except for those defendants who were indicted by a grand jury, to be conducted by 17 two-way electronic audiovideo communication between the defendant and the courtroom in lieu of the physical presence of the 18 defendant in the courtroom. If the defendant is represented by counsel, the attorney shall be present with the defendant at the initial 19 court appearance and arraignment, and may enter a plea during the arraignment. However, if the defendant is represented by counsel at 20 an arraignment on an information in a felony case, and if the defendant does not plead guilty or nolo contendere to any charge, the 21 attorney shall be present with the defendant or if the attorney is not present with the defendant, the attorney shall be present in court 22 during the hearing. The defendant shall have the right to make his or her plea while physically present in the courtroom if he or she so 23 requests. If the defendant decides not to exercise the right to be physically present in the courtroom, he or she shall execute a written 24 waiver of that right. A judge may order a defendant's personal appearance in court for the initial court appearance and arraignment. 25 In a misdemeanor case, a judge may, pursuant to this subdivision, accept a plea of guilty or no contest from a defendant who is not 26 physically in the courtroom. In a felony case, a judge may, pursuant to this subdivision, accept a plea of guilty or no contest from a 27 defendant who is not physically in the courtroom if the parties stipulate thereto. 28 1 Cal. Penal Code § 977(c)(1). 2 Defendants argue that neither defendant could create a video appearance policy at the 3 Sacramento County Superior Court because only the Superior Court has the power to establish 4 such a policy. Defendants argue that California Rules of Court, Rule 1.150(c), prohibits all 5 broadcasts of court proceedings, unless authorized by a judge or controlled by the court and court 6 personnel. Defendants argue that court appearance via video conference is not, and could not be, 7 a policy created by defendants, because its authorization and implementation require court 8 approval. Defendants state that video court appearance is a policy of the California State 9 Legislature and the courts, not defendants. 10 In his opposition, plaintiff alleges that he has obtained information from prison officials 11 demonstrating that defendants created the court video appearance policy. (ECF No. 33 at 1-2.) 12 Attached to plaintiff’s opposition is an “Inmate Request for Interview Form” submitted by 13 plaintiff on October 16, 2020. (Id. at 4.) In this form, plaintiff wrote: 14 Sir, I have a question. On April 13, 2018, I was taken to a video court hearing in a back room here at the prison. I want to know who 15 created the court’s video appearance policy for us to attend by video and not to be taken to the courthouse and why? Last we spoke, you 16 told me it was ADA Tucker decision who would appear via video and who go to courthouse. 17 (Id.) 18 In response, A. Konrad wrote, “I stand by that info Howell. It’s the DA’s call and policy 19 which inmate appear by video & who appear in court.” (Id.) 20 Plaintiff attaches to his opposition another “Inmate Request for Interview Form” in which 21 he again asks who created the court’s video policy. (Id. at 5.) In response, it appears that the 22 Warden, J. Lynch responded, “The district attorney office decide who appear by video court, not 23 the prison.” (Id.) 24 Generally, district courts may not consider material outside the pleadings when assessing 25 the sufficiency of a complaint under Rule 12(b)(6). Khoja v. Orexigen Therapeutics, Inc., 899 26 F.3d 988, 998 (9th Cir. 2018) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 27 2001). 28 //// 1 However, Rule 12(b)(6) gives courts the discretion to accept and consider extrinsic 2 materials and to convert a motion to dismiss to one for summary judgment. See Davis. v. HSBC 3 Bank Nevada, N.A., 691 F.3d 1152, 1160 (9th Cir. 2012) (citing Hamilton Material, Inc. v. Dow 4 Chemical Corp., 494 F.3d 1203, 1207 (9th Cir. 2007); see also Fabbri v. Wilkinson, 2019 WL 5 5781914, at *1 (C.D. Ca. Nov. 5, 2019) (citing Wright & Miller, 5C Fed. Prac. & Proc. Civ. 6 § 1366, at 159 (3d ed. 2004) (“As the language of [Rule 12(b)(6) ] suggests, federal courts have 7 complete discretion to determine whether or not to accept the submission of any material beyond 8 the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby 9 converting the motion, or to reject it or simply not consider it.”).) 10 The undersigned declines to consider the Inmate Request for Interview Forms attached to 11 plaintiff’s opposition because they do not demonstrate that defendants created the at-issue video 12 policy. Instead, these exhibits may demonstrate that defendants may decide which inmates will 13 appear via video at hearings, pursuant to the policy enacted by the California Legislature in 14 California Penal Code § 677(c)(1). 15 The docket for People v. Kareem Howell, Case No. 18FE001413, reflects that plaintiff 16 was scheduled to be arraigned on April 13, 2018. The transcript from April 13, 2018, reflects that 17 the arraignment was continued so that plaintiff’s counsel could meet with plaintiff. Therefore, the 18 video arraignment scheduled for April 13, 2018, appears to have complied with California Penal 19 Code § 677(c)(1), which permits initial appearances and arraignments by video. 20 The undersigned recommends that defendants’ motion to dismiss be granted because 21 defendants Schubert and Tucker did not create the at-issue policy allowing inmates to appear at 22 their initial appearances and arraignments via video. The California State Legislature created this 23 policy when it enacted California Penal Code § 667(c)(1). The trial court in plaintiff’s case 24 implemented the policy when it permitted plaintiff to appear via video for his initial appearance 25 and arraignment. 26 Is Plaintiff’s Claim Barred by Heck v. Humphrey? 27 Defendants argue that plaintiff’s Sixth Amendment claim is barred by Heck v. Humphrey, 28 512 U.S. 477 (1994). 1 In Heck v. Humphrey, 512 U.S. 477, 486–87 (1994), the United States Supreme Court 2 held that to recover damages for “harm caused by actions whose unlawfulness would render a 3 conviction or sentence invalid,” a § 1983 plaintiff must prove that the conviction or sentence was 4 reversed, expunged, or otherwise invalidated. The favorable termination rule laid out in Heck 5 preserves the rule that claims which, if successful, would necessarily imply the invalidity of a 6 conviction or sentence, must be brought by way of a petition for writ of habeas corpus. 7 Muhammad v. Close, 540 U.S. 749, 750–51 (2004). 8 Plaintiff alleges his Sixth Amendment right to confidentially communicate with his 9 attorney was violated at the April 13, 2018 court proceeding. The undersigned finds that this 10 claim is Heck barred because a finding that plaintiff’s Sixth Amendment rights were violated 11 would necessarily imply the invalidity of his conviction. Plaintiff has not proven that his 12 conviction has been reversed, expunged or otherwise invalidated. Accordingly, defendants’ 13 motion to dismiss on the grounds that plaintiff’s Sixth Amendment claim is Heck barred should 14 be granted.3 15 Were Plaintiff’s Sixth Amendment Rights Implicated by his Video Appearance on April 13, 16 2018? 17 Because plaintiff’s Sixth Amendment claim is Heck barred, the undersigned need not 18 consider defendants’ argument that plaintiff’s Sixth Amendment rights were not violated. 19

20 3 On June 27, 2019, plaintiff plead guilty to battery on an officer, i.e., the charge addressed at the April 13, 2018 court proceeding. The transcript from this hearing indicates that plaintiff 21 represented himself at this hearing. (See ECF No. 32-3 at 19.) In Tollett v. Henderson, 411 U.S. 258 (1973), the Supreme Court held that when a criminal defendant, on advice of counsel, has 22 solemnly admitted in open court that he is guilty of a charged offense, he may not thereafter raise 23 independent claims relating to deprivation of constitutional rights occurring prior to entry of the plea. Because plaintiff was not represented by counsel when he plead guilty, it does not appear 24 that his Sixth Amendment claim would be barred by Tollett v. Henderson were he to raise it in a habeas petition challenging the validity of his conviction. Thus, habeas relief is available to 25 plaintiff. Cf. Guerrero v. Gates, 442 F.3d 697, 704–05 (9th Cir. 2006) (discussing Cunningham v. Gates, 312 F.3d 1148, 1153 n.3 (9th Cir.2002)) (fact that habeas relief is no longer available to 26 a § 1983 plaintiff does not necessarily preclude application of the rule announced in Heck); but 27 see Hoard v. Reddy, 175 F.3d 531, 533 (7th Cir.1999) (“there is probably an exception to the rule of Heck for cases in which no route other than a damages action under section 1983 is open to the 28 person to challenge his conviction.”) 1 Accordingly, for the reasons discussed above, IT IS HEREBY RECOMMENDED that 2 | defendants’ motion to dismiss (ECF No. 32) be granted. 3 These findings and recommendations are submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 5 | after being served with these findings and recommendations, any party may file written 6 | objections with the court and serve a copy on all parties. Such a document should be captioned 7 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 8 | objections shall be filed and served within fourteen days after service of the objections. The 9 | parties are advised that failure to file objections within the specified time may waive the right to 10 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 11 | Dated: March 16, 2021 i A Abar 13 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 14 15 16 How266.mtd(2) 17 18 19 20 21 22 23 24 25 26 27 28