(PC) Shove v. State of California

Opinion

THEODORE CHURCHILL SHOVE, SR., No. 2:24-cv-01741-EFB (PC) Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS STATE OF CALIFORNIA, et al., Defendants. Plaintiff is a state prisoner proceeding without counsel in an action brought pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has filed an application to proceed in forma pauperis. ECF Nos. 2, 6. I. Request to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2). II. Screening Requirement and Standards Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. § 1915A(b). This standard is echoed in 28 U.S.C. § 1915(e)(2), which requires that courts dismiss a case in which a plaintiff proceeds in forma pauperis at any time if it determines, among other things, that the action “is frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.” “[The] term ‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989) (discussing the predecessor to modern § 1915(e)(2), former § 1915(d)). Thus, § 1915(e)(2) allows judges to dismiss a claim based on factual allegations that are clearly baseless, such as facts describing “fantastic or delusional scenarios.” Id. at 327-38. A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). While the complaint must comply with the “short and plaint statement” requirements of Rule 8, its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). To avoid dismissal for failure to state a claim a complaint must contain more than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678. Furthermore, a claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). III. Screening Order Plaintiff challenges various aspects of the criminal investigation, arrest, trial, and post-trial proceedings related to his murder convictions and death sentence. ECF No. 1. Because success on plaintiff’s claims would invalidate his conviction (plaintiff expressly seeks his release and expungement of his conviction, id. at 36-37), plaintiff must show that his conviction has been invalidated (for example, through the granting of a petition for writ of habeas corpus) before he can proceed with a § 1983 claim. Hebrard v. Nofziger, 90 F.4th 1000, 1007-08 (9th Cir. 2024); Shove v. Schwarzenegger, No. C 09-0656 RMW (PR), 2009 U.S. Dist. LEXIS 132505, at *6 (N.D. Cal. June 3, 2009). Plaintiff has not so alleged, and thus his claims must be dismissed without prejudice; plaintiff may raise these issues in a petition for writ of habeas corpus (if such a petition is not otherwise barred). The court takes judicial notice of the California Department of Corrections and Rehabilitation inmate locator, which states that petitioner remains condemned on the convictions he challenges herein. CDCR Inmate Locator, https://ciris.mt.cdcr.ca.gov/details?cdcrNumber=G11092, last checked Nov. 17, 2024. As amendment of the instant complaint would therefore be futile – plaintiff cannot show that his convictions have been invalidated as he is currently incarcerated under those convictions – the court should dismiss the complaint without leave to amend. IV. Order and Recommendation Accordingly, it is ORDERED that: 1. Plaintiff’s request to proceed in forma pauperis (ECF Nos. 2, 6) is granted. 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in accordance with the notice to the California Department of Corrections and Rehabilitation filed concurrently herewith. 3. The Clerk of Court randomly assign a district judge to this action. Itis further RECOMMENDED that the complaint be dismissed without prejudice and without leave to amend and the Clerk of Court directed to close the case and administratively terminate all pending motions. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). Datud EBL Dated: January 23, 2025 Lt 1 "lel 7 LAE” EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE