“A pro se litigant must be given leave to 22 amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that 23 the deficiencies of the complaint could not be cured by amendment.” (citation omitted
How later courts described this case
- “A pro se litigant must be given leave to 22 amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that 23 the deficiencies of the complaint could not be cured by amendment.” (citation omitted
- applying absolute immunity bar to government 13 attorneys handling civil litigation in state or federal court
- holding that while leave to amend shall be freely given, the court 2 does not have to allow futile amendments
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 RONNIE CHEROKEE BROWN, No. 2:21-cv-00655-CKD
12 Plaintiff,
13 v. ORDER AND
14 ERIK A. GUTIERREZ, FINDINGS AND RECOMMENDATIONS
15 Defendant.
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17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in the pending civil
18 rights action filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court
19 pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.
20 I. Screening Requirement
21 The court is required to screen complaints brought by prisoners seeking relief against a
22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
23 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
24 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
25 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
26 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
27 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
28 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
1 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
2 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
3 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
4 Cir. 1989); Franklin, 745 F.2d at 1227.
5 In order to avoid dismissal for failure to state a claim a complaint must contain more than
6 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause
7 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,
8 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
9 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim
10 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A
11 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
12 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
13 at 678. When considering whether a complaint states a claim upon which relief can be granted,
14 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and
15 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416
16 U.S. 232, 236 (1974).
17 II. Allegations in the Complaint
18 Plaintiff is suing the Deputy Attorney General for the State of California who negotiated
19 the settlement of a prior civil rights case filed by plaintiff. See Brown v. Katz, Case No. 2:20-cv-
20 02386-EFB (E.D. Cal.). Plaintiff alleges that defendant “extorted his settlement funds…” ECF
21 No. 1 at 4. By way of relief, plaintiff seeks compensatory and punitive damages.
22 III. Legal Standards
23 Prosecutors are absolutely immune from civil suits for damages under § 1983 which
24 challenge activities related to the initiation and presentation of criminal prosecutions. Imbler v.
25 Pachtman, 424 U.S. 409 (1976). Determining whether a prosecutor’s actions are immunized
26 requires a functional analysis. The classification of the challenged acts, not the motivation
27 underlying them, determines whether absolute immunity applies. Ashelman v. Pope, 793 F.2d
28 1072 (9th Cir. 1986) (en banc). The prosecutor’s quasi-judicial functions, rather than
1 administrative or investigative functions, are absolutely immune. Thus, even charges of
2 malicious prosecution, falsification of evidence, coercion of perjured testimony and concealment
3 of exculpatory evidence will be dismissed on grounds of prosecutorial immunity. See Stevens v.
4 Rifkin, 608 F.Supp. 710, 728 (N.D. Cal. 1984).
5 IV. Analysis
6 Defendant Gutierrez is absolutely immune from suit for his actions taken in defending the
7 State of California in suits brought against it. See Imbler v. Pachtman, 424 U.S. 409, 431 (1976);
8 Bly–Magee v. California, 236 F.3d 1014, 1016 (9th Cir. 2001); Fry v. Melaragno, 939 F.2d 832,
9 835–36 (9th Cir. 1991). The specific conduct complained of in the complaint relates to
10 defendant’s litigation duties in a prior lawsuit. Even when sued in an individual capacity,
11 defendant Gutierrez is immune from suit for his conduct occurring during the performance of his
12 official duties. See Fry, 939 F.2d at 836-37 (applying absolute immunity bar to government
13 attorneys handling civil litigation in state or federal court). For this reason, the undersigned
14 recommends dismissing plaintiff’s complaint because it seeks monetary relief from a defendant
15 who is immune from suit. See 28 U.S.C. § 1915A(b)(2).
16 V. Leave to Amend
17 If the court finds that a complaint or claim should be dismissed for failure to state a claim,
18 the court has discretion to dismiss with or without leave to amend. Leave to amend should be
19 granted if it appears possible that the defects in the complaint could be corrected, especially if a
20 plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); Cato v.
21 United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to
22 amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that
23 the deficiencies of the complaint could not be cured by amendment.” (citation omitted).
24 However, if, after careful consideration, it is clear that a claim cannot be cured by amendment,
25 the Court may dismiss without leave to amend. Cato, 70 F.3d at 1105-06.
26 It appears to the court that amendment would be futile because defendant is immune from
27 suit as a matter of law. Therefore, the undersigned recommends that this action be dismissed
28 without leave to amend. Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d
1 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the court
2 does not have to allow futile amendments).
3 VI. Plain Language Summary
4 The following information is meant to explain this order in plain English and is not
5 intended as legal advice.
6 It is recommended that your complaint be dismissed because defendant cannot be sued for
7 monetary damages. Allowing you to amend the complaint would be futile. As a result, it is
8 recommended that you not be granted leave to amend your complaint and that this civil action be
9 closed.
10 If you disagree with this recommendation, you have 14 days to explain why it is not the
11 correct result. Label your explanation as “Objections to the Magistrate Judge's Findings and
12 Recommendations.” The district judge assigned to your case will then make a final decision.
13 In accordance with the above, IT IS HEREBY ORDERED that:
14 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is denied.
15 2. The Clerk of Court randomly assign this matter to a district court judge.
16 IT IS FURTHER RECOMMENDED that plaintiff’s complaint (ECF No. 1) be dismissed
17 without leave to amend because it seeks monetary relief from a defendant who is immune from
18 suit.
19 Within fourteen days after being served with these findings and recommendations, any
20 party may file written objections with the court and serve a copy on all parties. Such a document
21 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any
22 response to the objections shall be served and filed within fourteen days after service of the
23 objections. The parties are advised that failure to file objections within the specified time may
24 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
25 1991).
26 /////
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1 || Dated: May 27, 2021 2 ‘ae f | / a ly i
2 CAROLYN DELANEY
3 UNITED STATES MAGISTRATE JUDGE
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