# (PS) Van den Heuvel v. Cardullo

> District Court, E.D. California · October 17, 2019

URL: https://www.frixlaw.com/law-library/cases/10014603

## Case

- **Court:** District Court, E.D. California
- **Decided:** October 17, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10014603

## How later opinions describe it (automated extraction)

- holding that while leave to amend shall be freely given, the 8 court does not have to allow futile amendments

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 JOHN MARK VAN DEN HEUVEL No. 2:19-cv-0883 MCE DB PS
A.K.A. JEAN MARC,
12
13 Plaintiff, ORDER
14 v.
15 EL DORADO COUNTY DISTRICT
ATTORNEYS, et al.,
16
17 Defendants.
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19 Plaintiff, John Mark Van den Heuvel, is proceeding in this action pro se. This matter was
20 referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
21 Pending before the court are plaintiff’s complaint and motion to proceed in forma pauperis
22 pursuant to 28 U.S.C. § 1915. (ECF Nos. 1 & 6.) Therein, plaintiff complains about a criminal
23 prosecution.
24 The court is required to screen complaints brought by parties proceeding in forma
25 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.
26 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated
27 below, plaintiff’s complaint will be dismissed with leave to amend.
28 ////
1 I. Plaintiff’s Application to Proceed In Forma Pauperis
2 Plaintiff’s in forma pauperis application makes the financial showing required by 28
3 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma
4 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny
5 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed
6 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d
7 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th
8 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th
9 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed
10 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous
11 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the
12 District Court to examine any application for leave to proceed in forma pauperis to determine
13 whether the proposed proceeding has merit and if it appears that the proceeding is without merit,
14 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”).
15 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of
16 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to
17 state a claim on which relief may be granted, or seeks monetary relief against an immune
18 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an
19 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v.
20 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a
21 complaint as frivolous where it is based on an indisputably meritless legal theory or where the
22 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e).
23 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to
24 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
25 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as
26 true the material allegations in the complaint and construes the allegations in the light most
27 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v.
28 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245
1 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by
2 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true
3 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western
4 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
5 The minimum requirements for a civil complaint in federal court are as follows:
6 A pleading which sets forth a claim for relief . . . shall contain (1) a
short and plain statement of the grounds upon which the court’s
7 jurisdiction depends . . . , (2) a short and plain statement of the
claim showing that the pleader is entitled to relief, and (3) a demand
8 for judgment for the relief the pleader seeks.
9 Fed. R. Civ. P. 8(a).
10 II. Plaintiff’s Complaint
11 Here, plaintiff’s complaint is deficient in several respects.
12 A. Failure to State a Claim
13 The complaint fails to contain a short and plain statement of a claim showing that plaintiff
14 is entitled to relief. In this regard, the allegations found in the complaint are difficult to decipher.
15 The complaint makes vague and conclusory allegations about “[t]he testimonies of the #3
16 arresting officers,” “false intentful (sic) imprisonment by honorable Judge Kenneth J. Melikians,”
17 and a “license being wrongfully revoked[.]” (Compl. (ECF No. 1) at 5-6.)
18 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a
19 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that
20 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v.
21 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels
22 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor
23 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual
24 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555,
25 557). A plaintiff must allege with at least some degree of particularity overt acts which the
26 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649.
27 ////
28 ////
1 B. Prosecutorial Immunity
2 The complaint names four defendants—each of whom are prosecutors with the El Dorado
3 County District Attorney. (Compl. (ECF No. 1) at 3.) “Absolute immunity is generally accorded
4 to . . . prosecutors functioning in their official capacities.” Olsen v. Idaho State Bd. of Medicine,
5 363 F.3d 916, 922 (9th Cir. 2004). In this regard, “[a] state prosecutor is entitled to absolute
6 immunity from liability under § 1983 for violating a person’s federal constitutional rights when
7 he or she engages in activities ‘intimately associated with the judicial phase of the criminal
8 process.’” Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003) (quoting Imbler v. Pachtman,
9 424 U.S. 409, 430 (1976)).
10 Here, plaintiff may be attempting to allege a malicious prosecution claim. “Malicious
11 prosecution consists of initiating or procuring the arrest and prosecution of another under lawful
12 process, but from malicious motives and without probable cause . . . . The test is whether the
13 defendant was actively instrumental in causing the prosecution.” Sullivan v. County of Los
14 Angeles, 12 Cal.3d 710, 720 (Cal. 1974). To prevail on a § 1983 claim of malicious prosecution,
15 the plaintiff must show that the defendant prosecuted plaintiff: (1) with malice; (2) without
16 probable cause; and (3) “‘[f]or the purpose of denying [plaintiff] equal protection or another
17 specific constitutional right.’” Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004)
18 (quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)); see also Lassiter v.
19 City of Bremerton, 556 F.3d 1049, 1054-55 (9th Cir. 2009) (“[p]robable cause is an absolute
20 defense to malicious prosecution”). “Further, because the state tort common law has been
21 incorporated into the elements of a § 1983 malicious prosecution claim, a plaintiff must generally
22 show that the prior prosecution terminated in a manner that indicates innocence, i.e. a favorable
23 termination.” Mazzetti v. Bellino, 57 F.Supp.3d 1262, 1268 (E.D. Cal. 2014) (citing Awabdy,
24 368 F. 3d at 1066-68).
25 C. Judicial Immunity
26 As noted above, the complaint refers to “the false intentful (sic) imprisonments by
27 honorable Judge Kenneth J. Melikains[.]” (Compl. (ECF No. 1) at 5.) Plaintiff is advised that
28 judges are absolutely immune from suit for acts performed in a judicial capacity. See Antoine v.
1 Byers & Anderson, Inc., 508 U.S. 429, 435 & n.10 (1993); Mireles v. Waco, 502 U.S. 9, 11
2 (1991); Stump v. Sparkman, 435 U.S. 349, 357-60 (1978); Ashelman v. Pope, 793 F.2d 1072,
3 1075 (9th Cir. 1986) (en banc) (“Judges are immune from damage actions for judicial acts taken
4 within the jurisdiction of their courts.”).
5 D. Heck Bar and Rooker-Feldman
6 Plaintiff’s complaint makes vague reference to various state court criminal proceedings.
7 Plaintiff is advised that in Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme
8 Court held that a plaintiff may not prevail on § 1983 claim if doing so “would necessarily imply
9 the invalidity” of plaintiff’s conviction arising out of the same underlying facts as those at issue in
10 the civil action “unless the plaintiff can demonstrate that the conviction or sentence has already
11 been invalidated.” 512 U.S. at 487. Thus, “Heck says that ‘if a criminal conviction arising out of
12 the same facts stands and is fundamentally inconsistent with the unlawful behavior for which
13 section 1983 damages are sought, the 1983 action must be dismissed.’” Smith v. City of Hemet,
14 394 F.3d 689, 695 (9th Cir. 2005) (quoting Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.
15 1996)). “Consequently, ‘the relevant question is whether success in a subsequent § 1983 suit
16 would ‘necessarily imply’ or ‘demonstrate’ the invalidity of the earlier conviction or sentence[.]”
17 Beets v. County of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012) (quoting Smithart, 79 F.3d
18 at 951).
19 Additionally, under the Rooker-Feldman doctrine a federal district court is precluded from
20 hearing “cases brought by state-court losers complaining of injuries caused by state-court
21 judgments rendered before the district court proceedings commenced and inviting district court
22 review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544
23 U.S. 280, 284 (2005). The Rooker-Feldman doctrine applies not only to final state court orders
24 and judgments, but to interlocutory orders and non-final judgments issued by a state court as well.
25 Doe & Assoc. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001); Worldwide
26 Church of God v. McNair, 805 F.2d 888, 893 n. 3 (9th Cir. 1986).
27 The Rooker-Feldman doctrine prohibits “a direct appeal from the final judgment of a state
28 court,” Noel v. Hall, 341 F.3d 1148, 1158 (9th Cir. 2003), and “may also apply where the parties
1 do not directly contest the merits of a state court decision, as the doctrine prohibits a federal
2 district court from exercising subject matter jurisdiction over a suit that is a de facto appeal from a
3 state court judgment.” Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 859 (9th Cir. 2008)
4 (internal quotation marks omitted). “A suit brought in federal district court is a ‘de facto appeal’
5 forbidden by Rooker-Feldman when ‘a federal plaintiff asserts as a legal wrong an allegedly
6 erroneous decision by a state court, and seeks relief from a state court judgment based on that
7 decision.’” Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2010) (quoting Noel, 341 F.3d
8 at 1164); see also Doe v. Mann, 415 F.3d 1038, 1041 (9th Cir. 2005) (“[T]he Rooker-Feldman
9 doctrine bars federal courts from exercising subject-matter jurisdiction over a proceeding in
10 ‘which a party losing in state court’ seeks ‘what in substance would be appellate review of the
11 state judgment in a United States district court, based on the losing party’s claim that the state
12 judgment itself violates the loser’s federal rights.’”) (quoting Johnson v. De Grandy, 512 U.S.
13 997, 1005-06 (1994), cert. denied 547 U .S. 1111 (2006)). “Thus, even if a plaintiff seeks relief
14 from a state court judgment, such a suit is a forbidden de facto appeal only if the plaintiff also
15 alleges a legal error by the state court.” Bell v. City of Boise, 709 F.3d 890, 897 (9th Cir. 2013).
16 [A] federal district court dealing with a suit that is, in part, a
forbidden de facto appeal from a judicial decision of a state court
17 must refuse to hear the forbidden appeal. As part of that refusal, it
must also refuse to decide any issue raised in the suit that is
18 ‘inextricably intertwined’ with an issue resolved by the state court
in its judicial decision.
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20 Doe, 415 F.3d at 1043 (quoting Noel, 341 F.3d at 1158); see also Exxon, 544 U.S. at 286 n. 1 (“a
21 district court [cannot] entertain constitutional claims attacking a state-court judgment, even if the
22 state court had not passed directly on those claims, when the constitutional attack [is]
23 ‘inextricably intertwined’ with the state court’s judgment”) (citing Feldman, 460 U.S. at 482 n.
24 16)); Bianchi v. Rylaarsdam, 334 F.3d 895, 898, 900 n. 4 (9th Cir. 2003) (“claims raised in the
25 federal court action are ‘inextricably intertwined’ with the state court’s decision such that the
26 adjudication of the federal claims would undercut the state ruling or require the district court to
27 interpret the application of state laws or procedural rules”) (citing Feldman, 460 U.S. at 483 n. 16,
28 485).
1 III. Leave to Amend
2 For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned
3 has carefully considered whether plaintiff may amend the complaint to state a claim upon which
4 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith,
5 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d
6 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau,
7 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the
8 court does not have to allow futile amendments).
9 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff
10 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts
11 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221,
12 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v.
13 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to
14 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be
15 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.
16 1988)).
17 Here, given the vague and conclusory nature of the complaint’s allegations, the
18 undersigned cannot yet say that it appears beyond doubt that leave to amend would be futile.
19 Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted leave to file an
20 amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file an amended
21 complaint “the tenet that a court must accept as true all of the allegations contained in a complaint
22 is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
23 supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While
24 legal conclusions can provide the complaint’s framework, they must be supported by factual
25 allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line from
26 conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557).
27 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an
28 amended complaint complete. Local Rule 220 requires that any amended complaint be complete
1 in itself without reference to prior pleadings. The amended complaint will supersede the original
2 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint,
3 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption
4 and identified in the body of the complaint, and each claim and the involvement of each
5 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file
6 must also include concise but complete factual allegations describing the conduct and events
7 which underlie plaintiff’s claims.
8 CONCLUSION
9 Accordingly, IT IS HEREBY ORDERED that:
10 1. The complaint filed May 16, 2019 (ECF No. 1) is dismissed with leave to
11 amend.1
12 2. Within twenty-eight days from the date of this order, an amended complaint shall be
13 filed that cures the defects noted in this order and complies with the Federal Rules of Civil
14 Procedure and the Local Rules of Practice.2 The amended complaint must bear the case number
15 assigned to this action and must be titled “Amended Complaint.”
16 3. Failure to comply with this order in a timely manner may result in a recommendation
17 that this action be dismissed.
18 DATED: October 16, 2019 /s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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1 Plaintiff need not file another application to proceed in forma pauperis at this time unless
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plaintiff’s financial condition has improved since the last such application was submitted.
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2 Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of
28 voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10014603. Public record. Not legal advice.