affirming “filing a 20 complaint in court is a form of petitioning activity; but baseless litigation is not 21 immunized by the First Amendment right to petition.”
How later courts described this case
- affirming “filing a 20 complaint in court is a form of petitioning activity; but baseless litigation is not 21 immunized by the First Amendment right to petition.”
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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JACOB ANDREW BERGERON, Case No. CV 20-06760 VBF (RAO)
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Petitioner,
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MEMORANDUM AND ORDER
v. RE SUMMARY DISMISSAL OF
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PETITION FOR WRIT OF
KIRY K. GRAY, et al., HABEAS CORPUS AND DENIAL
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OF CERTIFICATE OF
Respondents. APPEALABILITY
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On August 9, 2020, Petitioner Jacob Andrew Bergeron (“Petitioner”), who is
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proceeding pro se, filed the instant Petition for Writ of Habeas Corpus (“Petition”),
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in which he alleges that Respondents’ failure to file one of his previous habeas corpus
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petitions violated his federal due process right to be free of restraint and his First
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Amendment rights of access to the courts and to petition the government. For the
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following reasons, the Petition is dismissed with prejudice.
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Under Rule 4 of the Rules Governing Section 2254 Cases in the United States
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District Courts, the Court may dismiss a petition “[i]f it plainly appears from the
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petition and any attached exhibits that the petitioner is not entitled to relief in the
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district court.”
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As a threshold matter, Petitioner is not entitled to habeas corpus relief because
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he is not in custody. “[T]he essence of habeas corpus is an attack by a person in
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1 custody upon the legality of that custody, and . . . the traditional function of the writ
is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484,
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93 S. Ct. 1827, 36 L. Ed.2d 439 (1973). Because there is no claim before the Court
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that Petitioner is in custody in violation of federal law, the Court cannot entertain the
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Petition as a petition for writ of habeas corpus.
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Although in certain circumstances the Court has the discretion to construe a
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habeas petition to plead a cause of action for a violation of civil rights under 42 U.S.C.
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§ 1983, see Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016) (en banc), the Court
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declines to do so here, as follows.
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In order to state a claim under Section 1983, a plaintiff must plead that a
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“person” acting under color of state law caused a deprivation of plaintiff’s federal
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constitutional rights or limited federal statutory rights. West v. Atkins, 487 U.S. 42,
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48, 108 S. Ct. 2250, 101 L. Ed.2d 40 (1988). Here, Petitioner contends that his
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federal due process and First Amendment rights were violated by Respondents’
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failure to file in a previous habeas corpus petition, in which Petitioner alleged that
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FBI agents in Atlanta were using mind-control devices to restrain him. The Court
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properly dismissed the prior petition because Petitioner was not in custody when he
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filed it, and Petitioner did not appeal that dismissal. The First Amendment simply is
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not implicated by a court’s dismissal of a frivolous action. See McDonald v. Smith,
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472 U.S. 479, 484, 105 S. Ct. 1827, 86 L. Ed. 384 (1985) (affirming “filing a
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complaint in court is a form of petitioning activity; but baseless litigation is not
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immunized by the First Amendment right to petition.”) (citation omitted); see also
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Brown v. Villaraigosa, 2010 WL 11483802, at *12 (C.D. Cal. Mar. 30, 2010) (noting
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“the First Amendment does not impose any affirmative obligation on the government
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to listen or to respond.”). Because Petitioner has failed to allege facts in the instant
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Petition that might demonstrate a deprivation of his constitutional rights, the Court
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declines to convert this action into a civil rights complaint.
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1 Moreover, because it is clear that no amount of tinkering with the Petition
could change the fact that the Court does not have jurisdiction to consider his claims,
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the Petition is dismissed with prejudice.
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Finally, because Petitioner has not made a substantial showing of the denial of
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a constitutional right or that the Court erred in its procedural ruling, Petitioner is not
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entitled to a certificate of appealability. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P.
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22(b); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 154 L. Ed.2d 931
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(2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed.2d 542
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(2000).
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Based on the foregoing, IT IS ORDERED THAT:
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1. The Petition is DISMISSED with prejudice; and
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2. A Certificate of Appealability is DENIED.
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DATED: October 26, 2020 /s/ Valerie Baker Fairbank
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15 VALERIE BAKER FAIRBANK
16 UNITED STATES DISTRICT JUDGE
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