1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTONIO ROMANCORREA, Case No. 1:20-cv-00242-JLT-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS SECOND AMENDED 13 v. COMPLAINT FOR FAILURE TO STATE A CLAIM 14 SUPERIOR COURT OF CALIFORNIA, COUNTY OF RIVERSIDE, MR. ALAN FOURTEEN-DAY OBJECTION PERIOD 15 TATE, MR. DAVE MACHER; HON. JUDGE THOMAS KELLY, MR. CATES, (Doc. No. 18) 16 Defendants. 17 18 19 Plaintiff Antonio Romancorrea is proceeding pro se in this civil rights action filed under 20 42 U.S.C. § 1983. Plaintiff’s Second Amended Complaint is before the Court for screening. 21 (Doc. No. 18). For the reasons stated herein, the undersigned recommends the district court 22 dismiss the Second Amended Complaint for failure to state a claim. 23 I. BACKGROUND 24 A. Procedural Posture 25 Plaintiff is a state prisoner incarcerated in the California Department of Corrections and 26 Rehabilitation (CDCR) at the California Correctional Institution (CCI) who initiated this action 27 by filing a pro se complaint. (Doc. No. 1). Plaintiff paid the full filing fee. (See Doc. No. 2, 28 Receipt No. CAE100045017). In his initial complaint, Plaintiff argued his conviction and 1 sentence were unlawful and requested relief “for being incarcerated for a crime that [he] did not 2 commit.” (Doc. No. 1 at 6). The complaint also contained brief allegations that Plaintiff had 3 limited access to the law library, the facility in which he is housed has leaks, and he works in a 4 kitchen that is dirty and slippery. (Id. at 5). Noting that a prisoner raising claims related to the 5 fact or duration of confinement is barred by Heck v. Humphrey, 512 U.S. 477, 481 (1994), the 6 Court issued an order directing Plaintiff to show cause why the action should not be dismissed as 7 barred by the favorable-termination rule, suggesting Plaintiff may wish to file a habeas corpus 8 petition. (Doc. No. 2). In the alternative, the Court advised Plaintiff if he wished to pursue the 9 conditions of his confinement, he could file an amended complaint. (Doc. No. 2). 10 Plaintiff elected to file a first amended complaint. (Doc. No. 8, FAC). After screening, 11 the Court noted the FAC added new Defendants, including the district attorney, the judge that 12 sentenced Plaintiff, and a prisoner counselor, but also included new claims along with 50 13 assorted pages as exhibits. (Doc. No. 10 at 1-3). Noting that Plaintiff’s central theme was that he 14 was unlawfully incarcerated, the Court again advised Plaintiff that he should file a habeas petition 15 but permitted Plaintiff one final opportunity to file a second amended complaint if he wished to 16 challenge the fact or duration of his confinement. (Id. at 2). 17 B. The Operative Pleading 18 Plaintiff filed a Second Amended Complaint, which identifies the following defendants: 19 the Superior Court of California located in the County of Riverside; Mr. Alan Tate, District 20 Attorney; Mr. Dave Macher, Public Defender; the Honorable Thomas Kelly; and Mr. Cates, 21 Warden of CCI. (Doc. No. 18 at 1-3). The SAC attaches over 20 pages of exhibits, which 22 include a “Notice of Rejection” from the Superior Court to a “Copy Request,” excerpt from the 23 California penal code, Plaintiff’s request and other inmates’ requests to CDCR for early parole 24 and CDCR’s decisions denying the same, Plaintiff’s Rehabilitative Case Plan, Plaintiff’s Legal 25 Status, and Correspondence from the Prison Law Office regarding CDCR’s 12-week time, credit 26 award and new release programs. (Id. at 6-29). As evidenced by the exhibits, Plaintiff is serving 27 a 50-year sentence for five counts of Lewd Act Upon a Child. (Id. at 8). 28 Plaintiff attempts to state two separate claims. In each, Plaintiff argues he was denied 1 access to court, due process, and freedom from cruel and unusual punishment. (Id. at 3, 4). 2 Plaintiff’s first clam raises alleged errors in connection with Plaintiff’s underlying state criminal 3 prosecution. Plaintiff alleges he was denied access to court because he made a request to the 4 clerk of the superior court to obtain copies of reports from the investigators, law enforcement, and 5 probation concerning his criminal prosecution and was told none exist. (Id. at 3). Regarding the 6 district attorney, Plaintiff states he charged him with five counts for offenses which all occurred 7 on the same day—January 1, 2021, and he denies committing the offenses. (Id. at 3-4). 8 Regarding his defense attorney, Plaintiff contends he “forced [him] to get the deal” because 9 otherwise he would get a life sentence. (Id. at 4). Concerning the judge, Plaintiff states the judge 10 “knows the United States Sentencing guidelines,” but ignored them and went to a “higher 50 yrs.” 11 (Id. at 4). 12 In his second claim, Plaintiff challenges the calculation of his sentence. (Id). To the 13 extent discernable, Plaintiff argues because he was not charged with a serious or violent offense 14 and is not a “striker offender” his sentence should not have been enhanced. (Id.). Plaintiff also 15 vaguely states that the clerk “must” have mailed his legal documents to CDCR, but he never 16 received them. (Id. at 5). 17 Plaintiff seeks unspecified “relief” stating, “Hon Justice Kavanaugh said before his 18 hearing no one is above the law.” Plaintiff requests the Court “grant” his complaint. (Id.). 19 II. STANDARD OF REVIEW 20 Plaintiff commenced this action while in jail and is subject to the Prison Litigation Reform 21 Act (“PLRA”), which requires, inter alia, the court to screen any complaint that seeks relief 22 against a governmental entity, its officers, or its employees before directing service upon any 23 defendant. 28 U.S.C. § 1915A. This requires the Court to identify any cognizable claims and 24 dismiss the complaint, or any portion, if is frivolous or malicious, that fails to state a claim upon 25 which relief may be granted, or that seeks monetary relief from a defendant who is immune from 26 such relief. See 28 U.S.C. §§ 1915A(b)(1), (2); see also 28 U.S.C. § 1915(e)(2)(b)(ii) (governing 27 actions where the plaintiff is proceeding in forma pauperis). 28 At the screening stags, the court accepts the factual allegations in the complaint as true, 1 construes the complaint in the light most favorable to the plaintiff, and resolves all doubts in the 2 Plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Bernhardt v. L.A. County, 339 3 F.3d 920, 925 (9th Cir. 2003). A court does not have to accept as true conclusory allegations, 4 unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 5 F.2d 618, 624 (9th Cir. 1981). Critical to evaluating a constitutional claim is whether it has an 6 arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); 7 Franklin, 745 F.2d at 1227. 8 The Federal Rules of Civil Procedure require only that the complaint include “a short and 9 plain statement of the claim showing the pleader is entitled to relief. . ..” Fed. R. Civ. P. 8(a)(2).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTONIO ROMANCORREA, Case No. 1:20-cv-00242-JLT-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS SECOND AMENDED 13 v. COMPLAINT FOR FAILURE TO STATE A CLAIM 14 SUPERIOR COURT OF CALIFORNIA, COUNTY OF RIVERSIDE, MR. ALAN FOURTEEN-DAY OBJECTION PERIOD 15 TATE, MR. DAVE MACHER; HON. JUDGE THOMAS KELLY, MR. CATES, (Doc. No. 18) 16 Defendants. 17 18 19 Plaintiff Antonio Romancorrea is proceeding pro se in this civil rights action filed under 20 42 U.S.C. § 1983. Plaintiff’s Second Amended Complaint is before the Court for screening. 21 (Doc. No. 18). For the reasons stated herein, the undersigned recommends the district court 22 dismiss the Second Amended Complaint for failure to state a claim. 23 I. BACKGROUND 24 A. Procedural Posture 25 Plaintiff is a state prisoner incarcerated in the California Department of Corrections and 26 Rehabilitation (CDCR) at the California Correctional Institution (CCI) who initiated this action 27 by filing a pro se complaint. (Doc. No. 1). Plaintiff paid the full filing fee. (See Doc. No. 2, 28 Receipt No. CAE100045017). In his initial complaint, Plaintiff argued his conviction and 1 sentence were unlawful and requested relief “for being incarcerated for a crime that [he] did not 2 commit.” (Doc. No. 1 at 6). The complaint also contained brief allegations that Plaintiff had 3 limited access to the law library, the facility in which he is housed has leaks, and he works in a 4 kitchen that is dirty and slippery. (Id. at 5). Noting that a prisoner raising claims related to the 5 fact or duration of confinement is barred by Heck v. Humphrey, 512 U.S. 477, 481 (1994), the 6 Court issued an order directing Plaintiff to show cause why the action should not be dismissed as 7 barred by the favorable-termination rule, suggesting Plaintiff may wish to file a habeas corpus 8 petition. (Doc. No. 2). In the alternative, the Court advised Plaintiff if he wished to pursue the 9 conditions of his confinement, he could file an amended complaint. (Doc. No. 2). 10 Plaintiff elected to file a first amended complaint. (Doc. No. 8, FAC). After screening, 11 the Court noted the FAC added new Defendants, including the district attorney, the judge that 12 sentenced Plaintiff, and a prisoner counselor, but also included new claims along with 50 13 assorted pages as exhibits. (Doc. No. 10 at 1-3). Noting that Plaintiff’s central theme was that he 14 was unlawfully incarcerated, the Court again advised Plaintiff that he should file a habeas petition 15 but permitted Plaintiff one final opportunity to file a second amended complaint if he wished to 16 challenge the fact or duration of his confinement. (Id. at 2). 17 B. The Operative Pleading 18 Plaintiff filed a Second Amended Complaint, which identifies the following defendants: 19 the Superior Court of California located in the County of Riverside; Mr. Alan Tate, District 20 Attorney; Mr. Dave Macher, Public Defender; the Honorable Thomas Kelly; and Mr. Cates, 21 Warden of CCI. (Doc. No. 18 at 1-3). The SAC attaches over 20 pages of exhibits, which 22 include a “Notice of Rejection” from the Superior Court to a “Copy Request,” excerpt from the 23 California penal code, Plaintiff’s request and other inmates’ requests to CDCR for early parole 24 and CDCR’s decisions denying the same, Plaintiff’s Rehabilitative Case Plan, Plaintiff’s Legal 25 Status, and Correspondence from the Prison Law Office regarding CDCR’s 12-week time, credit 26 award and new release programs. (Id. at 6-29). As evidenced by the exhibits, Plaintiff is serving 27 a 50-year sentence for five counts of Lewd Act Upon a Child. (Id. at 8). 28 Plaintiff attempts to state two separate claims. In each, Plaintiff argues he was denied 1 access to court, due process, and freedom from cruel and unusual punishment. (Id. at 3, 4). 2 Plaintiff’s first clam raises alleged errors in connection with Plaintiff’s underlying state criminal 3 prosecution. Plaintiff alleges he was denied access to court because he made a request to the 4 clerk of the superior court to obtain copies of reports from the investigators, law enforcement, and 5 probation concerning his criminal prosecution and was told none exist. (Id. at 3). Regarding the 6 district attorney, Plaintiff states he charged him with five counts for offenses which all occurred 7 on the same day—January 1, 2021, and he denies committing the offenses. (Id. at 3-4). 8 Regarding his defense attorney, Plaintiff contends he “forced [him] to get the deal” because 9 otherwise he would get a life sentence. (Id. at 4). Concerning the judge, Plaintiff states the judge 10 “knows the United States Sentencing guidelines,” but ignored them and went to a “higher 50 yrs.” 11 (Id. at 4). 12 In his second claim, Plaintiff challenges the calculation of his sentence. (Id). To the 13 extent discernable, Plaintiff argues because he was not charged with a serious or violent offense 14 and is not a “striker offender” his sentence should not have been enhanced. (Id.). Plaintiff also 15 vaguely states that the clerk “must” have mailed his legal documents to CDCR, but he never 16 received them. (Id. at 5). 17 Plaintiff seeks unspecified “relief” stating, “Hon Justice Kavanaugh said before his 18 hearing no one is above the law.” Plaintiff requests the Court “grant” his complaint. (Id.). 19 II. STANDARD OF REVIEW 20 Plaintiff commenced this action while in jail and is subject to the Prison Litigation Reform 21 Act (“PLRA”), which requires, inter alia, the court to screen any complaint that seeks relief 22 against a governmental entity, its officers, or its employees before directing service upon any 23 defendant. 28 U.S.C. § 1915A. This requires the Court to identify any cognizable claims and 24 dismiss the complaint, or any portion, if is frivolous or malicious, that fails to state a claim upon 25 which relief may be granted, or that seeks monetary relief from a defendant who is immune from 26 such relief. See 28 U.S.C. §§ 1915A(b)(1), (2); see also 28 U.S.C. § 1915(e)(2)(b)(ii) (governing 27 actions where the plaintiff is proceeding in forma pauperis). 28 At the screening stags, the court accepts the factual allegations in the complaint as true, 1 construes the complaint in the light most favorable to the plaintiff, and resolves all doubts in the 2 Plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Bernhardt v. L.A. County, 339 3 F.3d 920, 925 (9th Cir. 2003). A court does not have to accept as true conclusory allegations, 4 unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 5 F.2d 618, 624 (9th Cir. 1981). Critical to evaluating a constitutional claim is whether it has an 6 arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); 7 Franklin, 745 F.2d at 1227. 8 The Federal Rules of Civil Procedure require only that the complaint include “a short and 9 plain statement of the claim showing the pleader is entitled to relief. . ..” Fed. R. Civ. P. 8(a)(2). 10 Nonetheless, a claim must be facially plausible to survive screening. This requires sufficient 11 factual detail to allow the court to reasonably infer that each named defendant is liable for the 12 misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Moss v. U.S. Secret Service, 13 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not 14 sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. 15 Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. Although detailed factual allegations are not 16 required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 17 statements, do not suffice,” Iqbal, 556 U.S. at 678 (citations omitted), and courts “are not required 18 to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 19 2009) (internal quotation marks and citation omitted). 20 III. LAW AND ANALYSIS 21 A. Plaintiff’s Claims Must Be Pursued Via a Habeas Petition 22 Plaintiff challenges his underlying conviction and his 50-year sentence as unlawful. A 23 prisoner who wishes to challenge the fact or duration of confinement must pursue relief through a 24 habeas corpus action under 28 U.S.C. § 2254. Preiser v. Rodriquez, 411 U.S. 475, 500, (1973); 25 Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003). Civil rights actions brought under 42 26 U.S.C § 1983 challenge unconstitutional the conditions of confinement. Preiser, 411 U.S. at 499; 27 Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). “[A] prisoner in state custody cannot use a § 28 1983 action to challenge the fact or duration of his confinement,” but rather must seek habeas 1 corpus relief. Cervantes v. Pratt, 224 F. App’x 697, 700 (9th Cir. 2007)(citing Wilkinson v. 2 Dotson, 544 U.S. 74, 78 (2005)); see also Heck v. Humphrey, 512 U.S. 477 (1994). 3 In two prior screening orders, the Court warned Plaintiff that he cannot file a § 1983 claim 4 related to his criminal conviction. Despite the Court twice explaining that challenges to duration 5 of confinement or seeking speedier release must be raised in a habeas corpus petition, Plaintiff 6 continues to contest the fact or duration of confinement under the guise of § 1983. Thus, the 7 undersigned recommends the district court dismiss the Second Amended Complaint and advise 8 Plaintiff that to the extent Plaintiff he wishes to challenge any aspect of his criminal conviction or 9 sentence, he must do so through a writ of habeas corpus, not under the guise of a civil rights 10 action. 11 B. Judges Are Entitled to Absolute Judicial Immunity 12 The SAC names various people who were involved with Plaintiff’s underlying state 13 criminal trial as Defendants. To the extent Plaintiff names Judge Thomas Kelly, the superior 14 court judge who presided over his criminal trial, Judge Kelly is entitled to absolute immunity 15 from suit. Judicial immunity is immunity from suit, not just immunity from damages. Mireles v. 16 Waco, 502 U.S. 9, 11 (1991) (other citations omitted). This immunity applies even when the 17 judge’s acts are in error, malicious, or were in excess of his or her own jurisdiction. Id. (noting 18 judicial immunity applies even when a judge is accused of acting maliciously and corruptly). 19 Whether an action is “judicial,” is determined by the nature of the act and whether it is a function 20 normally performed by a judge. Id. at 14. Judges do not have immunity if: (1) their actions were 21 not taken in the judge’s judicial capacity; and (2) their actions were taken in the absence of 22 jurisdiction. Id. (citations omitted); see also Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir. 23 1974)(“A seemingly impregnable fortress in American Jurisprudence is the absolute immunity of 24 judges from civil liability for acts done by them within their judicial jurisdiction.”). Neither 25 exception is present here. Plaintiff faults the presiding judge on the basis that the sentence 26 imposed was excessive. Presiding over a criminal trial and sentencing a defendant thereafter fall 27 squarely within judicial capacity. Thus, the Second Amended Complaint should be dismissed as 28 against Judge Kelly because he is immune from suit. 1 C. Prosecutors Are Entitled to Immunity 2 The SAC next names Alan Tate, the district attorney who prosecuted Plaintiff. Like 3 judges acting in their judicial capacity, prosecutors also enjoy immunity from suits when they act 4 within the scope of their prosecutorial duties. Imbler v. Pachtman, 424 U.S. 409, 420 (1976). 5 The common-law immunity of a prosecutor stems from concern that “harassment by unfounded 6 litigation would cause a deflection of the prosecutor’s energies from his [or her] public duties....” 7 Id. Here, Plaintiff challenges the prosecutor’s charging decisions. These allegations are evident 8 that Plaintiff seeks to sue the prosecutor for acts taken in his prosecutorial capacity. Thus, the 9 Second Amended Complaint should be dismissed as against Alan Tate because he is immune 10 from suit 11 D. Public Defender Is Not a State Actor 12 When public defenders are acting in their role of advocate they are not acting under the 13 color of state, or federal, law for purposes of a § 1983 or a Bivens action. See Georgia v. 14 McCollum, 5050 U.S. 42, 53 (1992); Polk County v. Dodson, 454 U.S. 312, 320-25 (9th Cir. 15 2003) (en banc). The United States Supreme Court has concluded that public defenders do not 16 act under color of state law because their conduct as legal advocates is controlled by professional 17 standards independent of the administrative direction of s state supervisor. Vermont v. Brillon, 18 556 U.S. 81, 91 (2009). Accordingly, Plaintiff may not bring a action under § 1983 against Mr. 19 Dave Macher, his court-appointed defender for his role in connection with his role defending 20 Plaintiff in the underlying criminal case. 21 E. No Claim Stated Against Clerk of Superior Court or Warden 22 The SAC contains no specific allegations against Warden Cates. His name appears only 23 in passing after Plaintiff states he risk assessment is “low 1.” Liberally construed, the SAC 24 attempts to state an access to court claim based on the wrongful interference with delivery of his 25 mail. However, the SAC contains only a vague allegation that Plaintiff requested certain reports 26 authored by investigators, law enforcement, and parole officers from the clerk of the superior 27 court and was told there were no records, or, in the alterative, the clerk mailed any legal 28 documents to CDCR but Plaintiff did not receive the documents. 1 To pursue an access claim at the pleading stage, a plaintiff must articulate hat he has 2 suffered an “actual injury” by plausibly alleging that state officials interfered with his “capability 3 of bringing contemplated challenges to sentences or conditions of confinement before the courts.” 4 Lewis v. Casey, 518 U.S. 343, 349, 353 n.3 (1996). To satisfy this standard, a plaintiff must plead 5 that a state or prison official took some action that prevented the plaintiff from having 6 “‘meaningful access’ to the courts.” Phillips v. Hust, 588 F.3d 652, 655-56 (9th Cir. 2009) 7 (quoting Lewis, 518 U.S. at 351). Simply alleging a wrongful act without any concomitants does 8 not suffice. Lewis, 518 U.S. at 351. The “right at issue” is not “the right to a law library” or the 9 right to receive one’s mail. The right is to have access to the court to advance one’s qualified 10 claim. Id. at 350. Thus, an “inmate ... must ... demonstrate that the alleged shortcomings ... 11 hindered his efforts to pursue a legal claim.” Id. at 351. Here, the SAC identifies no case 12 Plaintiff sought to bring that was thwarted by his inability to obtain or receive the nondescript 13 documents. Thus, the Second Amended Complaint does not articulate a plausible access to court 14 claim. 15 CONCLUSION AND RECOMMENDATION 16 Plaintiff has had the opportunity on two occasions to cure the deficiencies in his prior 17 complaints. (See Doc. Nos. 2, 10). In each of these orders, the Court instructed Plaintiff on the 18 applicable law and pleading requirements. Despite affording Plaintiff an opportunity to correct 19 the deficiencies, the SAC fails to adequately state any plausible § 1983 claim. Thus, the 20 undersigned recommends the district court dismiss the SAC without further leave to amend. 21 McKinney v. Baca, 250 F. App’x 781 (9th Cir. 2007) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 22 1261 (9th Cir.1992) (noting discretion to deny leave to amend is particularly broad where court 23 has afforded plaintiff one or more opportunities to amend his complaint)). 24 Accordingly, it is RECOMMENDED: 25 The Second Amended Complaint be dismissed for failure to state a claim, that the Clerk 26 of Court enter judgment accordingly, and close this case 27 NOTICE TO PARTIES 28 These findings and recommendations will be submitted to the United States District Judge 1 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 2 | after being served with these findings and recommendations, a party may file written objections 3 | with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 4 | and Recommendations.” Parties are advised that failure to file objections within the specified 5 | time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 6 | (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 | Dated: _ November 22, 2022 Mile. Th fareh Hack 9 HELENA M. BARCH-KUCHTA 0 UNITED STATES MAGISTRATE JUDGE
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