1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 MARIO TORRES, Case No. 19-cv-06865-MMC
8 Plaintiff, ORDER STRIKING PREVIOUSLY DISMISSED FEDERAL CLAIMS; 9 v. DISMISSING REMAINING FEDERAL CLAIMS WITHOUT FURTHER LEAVE 10 DIANE BECTON, et al., TO AMEND; DISMISSING STATE LAW CLAIM WITHOUT PREJUDICE 11 Defendants.
13 14 On October 22, 2019, plaintiff Mario Torres filed his initial complaint, by which 15 pleading he asserted three claims under 42 U.S.C. § 1983 and one claim under state law. 16 That same day, plaintiff also filed an application to proceed in forma pauperis. 17 Thereafter, by order filed October 31, 2019 (“October 31 Order”), the Court granted 18 plaintiff’s application to proceed in forma pauperis and, having found plaintiff failed to 19 state a claim, dismissed the complaint with leave to amend. 20 On November 21, 2019, plaintiff filed his First Amended Complaint (“FAC”), by 21 which pleading he reasserted the same claims alleged in his initial complaint and added a 22 new §1983 claim for municipal liability under Monell v. Department of Social Services, 23 436 U.S. 65 (1978). Thereafter, by order filed December 20, 2019 (“December 20 24 Order”), the Court, having found plaintiff again failed to state a claim, dismissed the FAC 25 with limited leave to amend. 26 Now before the Court is plaintiff’s Second Amended Complaint (“SAC”), filed 27 January 21, 2021. Having read and considered the SAC, the Court rules as follows. 1 28 U.S.C. § 1915(e)(2), must dismiss the complaint if the plaintiff “fails to state a claim on 2 which relief may be granted.” See 28 U.S.C. § 1915(e)(2)(B)(ii). 3 As set forth below, the Court finds the SAC is subject to dismissal for failure to 4 state a claim and, given plaintiff’s failure to cure the previously identified deficiencies in 5 the FAC, such dismissal will be without further leave to amend. 6 1. Failure to File § 1381 Motion 7 In his SAC, plaintiff alleges, as he did in his FAC, that the Office of the Clerk of the 8 Contra Costa County Superior Court failed to file his “motion demanding trial pursuant to 9 P.C. § 1381” (“§ 1381 Motion”)1 and, based on such allegation, claims he was denied his 10 “First Amendment right to Access of the Courts,” his “Fifth and Fourteenth Amendments 11 rights to the ‘Due Process/Equal Protection of Law,’” and his “Sixth Amendment Right to 12 a Speedy Trial.” (See SAC ¶¶ 66, 71, 76.) 13 In its December 20 Order, the Court dismissed those claims without leave to 14 amend (see Order filed Dec. 20, 2019, at 3:20-21), and, consequently, they will be 15 stricken from the SAC. 16 2. Failure to Provide Discovery 17 In his SAC, plaintiff reasserts his claims that, based on his alleged inability “to 18 obtain his property/discovery” relating to his criminal proceedings, Contra Costa County 19 (“CCC”), Contra Costa County Public Defender Robin Lipetzky (“Lipetzky”), and 20 Christopher Martin (“Martin”), a private attorney appointed to represent him during those 21 proceedings, violated his First Amendment rights to “Access . . . the Court” and “to file an 22 adequate Grievance,” as well as his right to “Due Process/Equal Protection of Law.” 23 (See SAC ¶¶ 40, 64, 67, 72.)2 In support of those claims, plaintiff, in addition to 24 1 Pursuant to California Penal Code § 1381, a defendant who has been convicted 25 and incarcerated is, upon motion, entitled to a speedy trial on any charges that remain pending. 26 2 Although, in the FAC, plaintiff alleged Martin and Lipetzky “enforced” a “county 27 policy of discovery deprivation while acting on behalf of Contra Costa County, The Office 1 repeating, in essence, his allegations from the FAC, adds a citation to Rule 1.16(e) of the 2 California Rules of Professional Conduct3 and the following new allegations: he “was 3 denied knowledge of the facts and evidence surrounding his arrest and incarceration, the 4 cause and nature of his alleged crimes, any and all pre-trial knowledge of any and all 5 unprivileged information” (see id. ¶ 39); having been “deprived of the knowledge 6 surrounding his arrest and incarceration, . . . [he] demanded the evidence surrounding his 7 arrest and incarceration” (see id. ¶ 40); he “received Discovery from Martin” in March 8 2020 but “is unable to proceed with any type of legal action at this time, due to closures 9 of the county law library, stemming from the current Covid-19 pandemic” (see id. ¶ 63); 10 and “the enforcement of the . . . policy [of ‘discovery deprivation’] is used as a form of 11 Retaliation to punish Plaintiff for attempting to fight his conviction” (see id. ¶ 67). As set 12 forth below, plaintiff’s reliance on such additional allegations is unavailing. 13 First, as explained in the Court’s December 20 Order and October 31 Order, 14 plaintiff’s claims, to the extent brought against Martin, are subject to dismissal, as Martin 15 is a private attorney, not a state actor. See Szijarto v. Legeman, 466 F.2d 864, 864 (9th 16 Cir. 1972) (holding attorney representing criminal defendant, “whether retained or 17 appointed, does not act ‘under color of’ state law” for purposes of 42 U.S.C. § 1983). 18 Next, even assuming the alleged “policy of discovery deprivation” (see SAC ¶ 67) 19 constitutes an “administrative” act treated as state action, see Polk Cty. v. Dodson, 454 20 U.S. 312, 325 (1981) (recognizing public defender’s “administrative and possibly 21 investigative functions” may constitute state action), plaintiff’s claims against CCC and 22 Lipetzky fail, for the reason that plaintiff, as discussed below, has failed to cure a number 23 of the deficiencies identified in the Court’s December 20 Order. 24 not allege those individuals were acting on behalf of any other named defendants (see 25 SAC ¶¶ 67, 72). Consequently, the Court understands any claims based on alleged discovery deprivation are asserted only against Martin, Lipetzky, and the CCC. 26 3 Rule 1.16(e) provides that a lawyer, upon termination of his/her representation, 27 “promptly shall release to the client, at the request of the client, all client materials and 1 Most significantly, even if plaintiff’s new allegations concerning his “depriv[ation] of 2 . . . knowledge surrounding his arrest and incarceration” (see SAC ¶¶ 39-40) suffice to 3 identify the type of information he was seeking to obtain from the allegedly withheld 4 discovery, plaintiff nonetheless again fails to show “how his inability to obtain such 5 information prevent[ed] his access to the courts” (see Order, filed Dec. 20, 2020, at 4:27- 6 28 (internal quotation and citation omitted)). As set forth in the Court’s December 20 7 Order, a plaintiff asserting a violation of his right to access the courts must identify a 8 “nonfrivolous, arguable underlying claim” that he allegedly has been prevented from 9 pursuing as a result of such violation, and any such underlying claim must be “described 10 well enough to . . . show that the arguable nature of [such] claim is more than hope.” 11 (See Order, filed Dec. 20, 2019, at 4:27-5:6 (quoting Christopher v. Harbury, 536 U.S. 12 403, 415-16 (2002)).) Here, plaintiff fails to identify the underlying claim he seeks to 13 pursue, let alone show how any alleged lack of discovery has prevented him from 14 pursuing that claim.
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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 MARIO TORRES, Case No. 19-cv-06865-MMC
8 Plaintiff, ORDER STRIKING PREVIOUSLY DISMISSED FEDERAL CLAIMS; 9 v. DISMISSING REMAINING FEDERAL CLAIMS WITHOUT FURTHER LEAVE 10 DIANE BECTON, et al., TO AMEND; DISMISSING STATE LAW CLAIM WITHOUT PREJUDICE 11 Defendants.
13 14 On October 22, 2019, plaintiff Mario Torres filed his initial complaint, by which 15 pleading he asserted three claims under 42 U.S.C. § 1983 and one claim under state law. 16 That same day, plaintiff also filed an application to proceed in forma pauperis. 17 Thereafter, by order filed October 31, 2019 (“October 31 Order”), the Court granted 18 plaintiff’s application to proceed in forma pauperis and, having found plaintiff failed to 19 state a claim, dismissed the complaint with leave to amend. 20 On November 21, 2019, plaintiff filed his First Amended Complaint (“FAC”), by 21 which pleading he reasserted the same claims alleged in his initial complaint and added a 22 new §1983 claim for municipal liability under Monell v. Department of Social Services, 23 436 U.S. 65 (1978). Thereafter, by order filed December 20, 2019 (“December 20 24 Order”), the Court, having found plaintiff again failed to state a claim, dismissed the FAC 25 with limited leave to amend. 26 Now before the Court is plaintiff’s Second Amended Complaint (“SAC”), filed 27 January 21, 2021. Having read and considered the SAC, the Court rules as follows. 1 28 U.S.C. § 1915(e)(2), must dismiss the complaint if the plaintiff “fails to state a claim on 2 which relief may be granted.” See 28 U.S.C. § 1915(e)(2)(B)(ii). 3 As set forth below, the Court finds the SAC is subject to dismissal for failure to 4 state a claim and, given plaintiff’s failure to cure the previously identified deficiencies in 5 the FAC, such dismissal will be without further leave to amend. 6 1. Failure to File § 1381 Motion 7 In his SAC, plaintiff alleges, as he did in his FAC, that the Office of the Clerk of the 8 Contra Costa County Superior Court failed to file his “motion demanding trial pursuant to 9 P.C. § 1381” (“§ 1381 Motion”)1 and, based on such allegation, claims he was denied his 10 “First Amendment right to Access of the Courts,” his “Fifth and Fourteenth Amendments 11 rights to the ‘Due Process/Equal Protection of Law,’” and his “Sixth Amendment Right to 12 a Speedy Trial.” (See SAC ¶¶ 66, 71, 76.) 13 In its December 20 Order, the Court dismissed those claims without leave to 14 amend (see Order filed Dec. 20, 2019, at 3:20-21), and, consequently, they will be 15 stricken from the SAC. 16 2. Failure to Provide Discovery 17 In his SAC, plaintiff reasserts his claims that, based on his alleged inability “to 18 obtain his property/discovery” relating to his criminal proceedings, Contra Costa County 19 (“CCC”), Contra Costa County Public Defender Robin Lipetzky (“Lipetzky”), and 20 Christopher Martin (“Martin”), a private attorney appointed to represent him during those 21 proceedings, violated his First Amendment rights to “Access . . . the Court” and “to file an 22 adequate Grievance,” as well as his right to “Due Process/Equal Protection of Law.” 23 (See SAC ¶¶ 40, 64, 67, 72.)2 In support of those claims, plaintiff, in addition to 24 1 Pursuant to California Penal Code § 1381, a defendant who has been convicted 25 and incarcerated is, upon motion, entitled to a speedy trial on any charges that remain pending. 26 2 Although, in the FAC, plaintiff alleged Martin and Lipetzky “enforced” a “county 27 policy of discovery deprivation while acting on behalf of Contra Costa County, The Office 1 repeating, in essence, his allegations from the FAC, adds a citation to Rule 1.16(e) of the 2 California Rules of Professional Conduct3 and the following new allegations: he “was 3 denied knowledge of the facts and evidence surrounding his arrest and incarceration, the 4 cause and nature of his alleged crimes, any and all pre-trial knowledge of any and all 5 unprivileged information” (see id. ¶ 39); having been “deprived of the knowledge 6 surrounding his arrest and incarceration, . . . [he] demanded the evidence surrounding his 7 arrest and incarceration” (see id. ¶ 40); he “received Discovery from Martin” in March 8 2020 but “is unable to proceed with any type of legal action at this time, due to closures 9 of the county law library, stemming from the current Covid-19 pandemic” (see id. ¶ 63); 10 and “the enforcement of the . . . policy [of ‘discovery deprivation’] is used as a form of 11 Retaliation to punish Plaintiff for attempting to fight his conviction” (see id. ¶ 67). As set 12 forth below, plaintiff’s reliance on such additional allegations is unavailing. 13 First, as explained in the Court’s December 20 Order and October 31 Order, 14 plaintiff’s claims, to the extent brought against Martin, are subject to dismissal, as Martin 15 is a private attorney, not a state actor. See Szijarto v. Legeman, 466 F.2d 864, 864 (9th 16 Cir. 1972) (holding attorney representing criminal defendant, “whether retained or 17 appointed, does not act ‘under color of’ state law” for purposes of 42 U.S.C. § 1983). 18 Next, even assuming the alleged “policy of discovery deprivation” (see SAC ¶ 67) 19 constitutes an “administrative” act treated as state action, see Polk Cty. v. Dodson, 454 20 U.S. 312, 325 (1981) (recognizing public defender’s “administrative and possibly 21 investigative functions” may constitute state action), plaintiff’s claims against CCC and 22 Lipetzky fail, for the reason that plaintiff, as discussed below, has failed to cure a number 23 of the deficiencies identified in the Court’s December 20 Order. 24 not allege those individuals were acting on behalf of any other named defendants (see 25 SAC ¶¶ 67, 72). Consequently, the Court understands any claims based on alleged discovery deprivation are asserted only against Martin, Lipetzky, and the CCC. 26 3 Rule 1.16(e) provides that a lawyer, upon termination of his/her representation, 27 “promptly shall release to the client, at the request of the client, all client materials and 1 Most significantly, even if plaintiff’s new allegations concerning his “depriv[ation] of 2 . . . knowledge surrounding his arrest and incarceration” (see SAC ¶¶ 39-40) suffice to 3 identify the type of information he was seeking to obtain from the allegedly withheld 4 discovery, plaintiff nonetheless again fails to show “how his inability to obtain such 5 information prevent[ed] his access to the courts” (see Order, filed Dec. 20, 2020, at 4:27- 6 28 (internal quotation and citation omitted)). As set forth in the Court’s December 20 7 Order, a plaintiff asserting a violation of his right to access the courts must identify a 8 “nonfrivolous, arguable underlying claim” that he allegedly has been prevented from 9 pursuing as a result of such violation, and any such underlying claim must be “described 10 well enough to . . . show that the arguable nature of [such] claim is more than hope.” 11 (See Order, filed Dec. 20, 2019, at 4:27-5:6 (quoting Christopher v. Harbury, 536 U.S. 12 403, 415-16 (2002)).) Here, plaintiff fails to identify the underlying claim he seeks to 13 pursue, let alone show how any alleged lack of discovery has prevented him from 14 pursuing that claim. 15 Further, plaintiff’s new allegation that the “CCC policy of discovery deprivation” 16 was “used as a form of Retaliation to punish Plaintiff for attempting to fight his conviction” 17 (see SAC ¶ 67) is wholly conclusory and, thus, insufficient to state a cognizable claim for 18 relief based thereon, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding 19 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 20 statements” do not suffice to state claim for relief). 21 Lastly, to the extent the SAC can be read as asserting a claim for damages and/or 22 declaratory relief based on a theory that plaintiff’s criminal defense attorney, by 23 “enforc[ing]” the alleged “CCC policy of discovery deprivation” (see SAC ¶ 72), provided 24 ineffective assistance that resulted in his conviction of “various crimes” (see id. ¶ 56), any 25 such claim is barred under Heck v. Humphrey, 512 U.S. 477 (1994), see Heck, 512 U.S. 26 at 486-87 (holding plaintiff, to plead a viable claim under § 1983 for “harm caused by 27 actions whose unlawfulness would render a conviction or sentence invalid, . . . must 1 see also Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (affirming 2 dismissal of § 1983 claim predicated on ineffective assistance of counsel; holding claim 3 necessarily implicated invalidity of conviction and thus was barred by Heck); Wilkins v. 4 Picetti, No. C 10-2818 LHK (PR), 2013 WL 5958148, at *2 (N.D. Cal. Nov. 7, 2013) 5 (finding ineffective assistance of counsel claim barred by Heck; applying bar to claims for 6 damages and equitable relief). 7 Accordingly, to the extent plaintiff’s claims are based on a failure to provide 8 discovery, those claims are subject to dismissal. 9 3. Monell Claim 10 In his SAC, plaintiff asserts, as he did in his FAC, a Monell claim against the CCC, 11 as well as defendants Office of the District Attorney, Office of the Clerk, and Office of the 12 Public Defender. In support thereof, plaintiff, in addition to repeating, in essence, his 13 allegations from the FAC, adds a new allegation that “the [d]efendants in this case have a 14 history . . . of complaints and lawsuits filed against them for misconduct similar/equal to 15 the incident at issue.” (See SAC ¶ 88.) 16 This new allegation is, however, both vague and conclusory, and plaintiff’s 17 remaining allegations are, as the Court previously found in the December 20 Order, “bare 18 assertions” amounting to nothing more than “a formulaic recitation of the elements” of a 19 Monell claim. See Iqbal, 556 U.S. at 681; (see also Order, filed Dec. 20, 2019, at 5:14- 20 24). 21 Accordingly, plaintiff’s Monell claim is subject to dismissal. 22 4. State Law Claim 23 As noted in the December 20 Order, plaintiff’s remaining claim arises under state 24 law, and, as the parties are not diverse in citizenship (see SAC ¶¶ 3-11 (listing California 25 addresses for plaintiff and all defendants)), the Court’s jurisdiction over plaintiff’s state 26 law claim is supplemental in nature. See 28 U.S.C. § 1367(a). Where, as here, a court 27 has dismissed all claims over which it has original jurisdiction, it may decline to exercise 1 instance, given the early stage of the proceedings, the Court finds it appropriate to 2 || decline to exercise supplemental jurisdiction over plaintiff's state law claim. 3 CONCLUSION 4 For the reasons set forth above: 5 1. To the extent plaintiff's federal claims are based on an alleged failure to file 6 || his § 1381 Motion, such claims are hereby STRICKEN from the SAC. 7 2. Plaintiff's remaining federal claims are hereby DISMISSED without further 8 || leave to amend. 9 3. Plaintiff's state law claim is hereby DISMISSED without prejudice to refiling 10 || in state court. 11 IT IS SO ORDERED. 12 . 13 || Dated: April 2, 2021 . MAKINE M. CHESNEY 14 Unitéd States District Judge
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