# Mourning v. Office of the Attorney General

> District Court, S.D. California · May 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10081134

## Case

- **Court:** District Court, S.D. California
- **Decided:** May 14, 2020
- **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/10081134

## How later opinions describe it (automated extraction)

- noting that claims dismissed with 14 || leave to amend which are not re-alleged in an amended pleading may be “considered 15 || waived if not repled.”
- finding claim against prosecutors 21 with clear immunity legally frivolous within the meaning of section 1915
- holding that a writ of 25 habeas corpus is “explicitly and historically designed” to provide a state prisoner with the 26 “exclusive” means to “attack the validity of his confinement” in federal court

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 JEFFERY LEE MOURNING, Case No.: 3:20-cv-00804-AJB-JLB
CDCR #BK-7383,
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ORDER DISMISSING COMPLAINT
Plaintiff,
13 FOR FAILING TO STATE
vs. A CLAIM AND FOR SEEKING
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MONEY DAMAGES FROM IMMUNE
OFFICE OF THE ATTORNEY
15 DEFENDANTS PURSUANT
GENERAL; ERIC A. SWENSON;
TO 28 U.S.C. § 1915A(b)
16 ALLEN BROWN,
17 Defendants.
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20 I. Procedural Background
21 Plaintiff Jefferey Lee Mourning, currently incarcerated at Ironwood State Prison in
22 Blythe, California, is proceeding pro se in this civil action filed on April 27, 2020,
23 pursuant to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). Plaintiff did not file a motion
24 to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) together with his
25 Complaint, and instead remitted the $400 filing fee required by 28 U.S.C. § 1914(a) to
26 commence a civil action. See ECF No. 1, Receipt No. CAS120979.
27 / / /
28 / / /
1 II. Plaintiff’s Allegations
2 Plaintiff’s allegations are not entirely clear. He alleges that he was sentenced on
3 October 25, 2019 to serve three years with an additional year enhancement due to a prior
4 conviction as “part of the plea negotiations.” (Compl. at 3.) However, the penal code
5 section which added an additional year to Plaintiff’s sentence was purportedly repealed
6 and Plaintiff claims it should have been served “concurrent” with his three-year sentence.
7 (Id.) Plaintiff alleges that Defendants Eric Swenson, a Deputy Attorney General, and
8 Allen Brown, a Deputy District Attorney, have “asked the appeal court” to change
9 Plaintiff’s plea deal to have him serve his time consecutively rather than concurrently.
10 (Id.) Plaintiff claims Defendants actions have “divested [him] of accumulated good
11 conduct credit.” (Id. at 4.)
12 As a result of Defendants’ actions, Plaintiff claims that he is “experience[ing] false
13 imprisonment.” (Id. at 5.) He further claims Defendants are “using Plaintiff as their
14 sacrificial lamb.” (Id. at 6.)
15 Plaintiff seeks injunctive relief, as well as compensatory damages for “each day
16 served in illegal & unconstitutional false imprisonment,” and $5,000,000 in punitive
17 damages. (Id. at 9.)
18 III. Screening of Complaint pursuant to 28 U.S.C. § 1915A
19 A. Standard of Review
20 As a preliminary matter, the Court must conduct an initial review of Plaintiff’s
21 Complaint pursuant to 28 U.S.C. § 1915A, because he is a prisoner and seeks “redress
22 from a governmental entity or officer or employee of a governmental entity.” See 28
23 U.S.C. § 1915A(a). Section 1915A “mandates early review— ‘before docketing [] or []
24 as soon as practicable after docketing’—for all complaints ‘in which a prisoner seeks
25 redress from a governmental entity or officer or employee of a governmental entity.’”
26 Chavez v. Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016). The mandatory screening
27 provisions of § 1915A apply to all prisoners, no matter their fee status, who bring suit
28 against a governmental entity, officer, or employee. See, e.g. Resnick v. Hayes, 213 F.3d
1 443, 446-47 (9th Cir. 2000). “On review, the court shall … dismiss the complaint, or any
2 portion of the complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon
3 which relief may be granted; or (2) seeks monetary relief from a defendant who is
4 immune from such relief.” Olivas v. Nevada ex rel. Dept. of Corr., 856 F.3d 1281, 1283
5 (9th Cir. 2017) (quoting 28 U.S.C. § 1915A(b)).
6 B. 42 U.S.C. § 1983
7 “Section 1983 creates a private right of action against individuals who, acting
8 under color of state law, violate federal constitutional or statutory rights.” Devereaux v.
9 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of
10 substantive rights, but merely provides a method for vindicating federal rights elsewhere
11 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks
12 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)
13 deprivation of a right secured by the Constitution and laws of the United States, and (2)
14 that the deprivation was committed by a person acting under color of state law.” Tsao v.
15 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
16 C. Criminal Proceedings – Heck’s “Favorable Termination” Requirement
17 There are two methods for state prisoners to raise complaints related to their
18 imprisonment in federal court. See Muhammad v. Close, 540 U.S. 749, 750 (2004)
19 (“Federal law opens two main avenues to relief on complaints related to
20 imprisonment....”) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). In general,
21 claims of constitutional violations related to the “circumstances” of a prisoner’s
22 confinement must be brought in a civil rights action under Section 1983, see id., while
23 constitutional challenges to the validity or duration of a prisoner’s confinement which
24 seek either “immediate release from prison” or the “shortening of [a state prison] term”
25 must be raised in a petition for federal habeas corpus under 28 U.S.C. § 2254 or through
26 appropriate state relief. Wilkinson v. Dotson, 544 U.S. 74, 78-79 (2005) (citations and
27 internal quotation marks omitted); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016)
28 (en banc) (“The Court has long held that habeas is the exclusive vehicle for claims
1 brought by state prisoners that fall within the core of habeas, and such claims may not be
2 brought in a § 1983 action.”) (citing Dotson, 544 U.S. at 81-82), cert. denied, (Jan. 9,
3 2017) (No. 16-6556).
4 First, to the extent Plaintiff seeks damages and injunctive relief based on claims
5 that prosecutors sought an extended sentence for Plaintiff, see Compl., ECF No. 1 at 3, he
6 may not pursue those claims in a civil rights action pursuant to 42 U.S.C. § 1983, without
7 first showing his conviction has already been invalidated. Heck v. Humphrey, 512 U.S.
8 477, 486-87 (1994).
9 In Heck, the Supreme Court held:
10 in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
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actions whose unlawfulness would render a conviction or
12 sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
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expunged by executive order, declared invalid by a state
14 tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas
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corpus, 28 U.S.C. § 2254. A claim for damages bearing that
16 relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983.
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18 Id. at 486-87; Washington v. Los Angeles County Sheriff’s Dep’t, 833 F.3d 1048, 1054-55
19 (9th Cir. 2016).
20 “Suits challenging the validity of the prisoner’s continued incarceration lie within
21 ‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state
22 prisoner who is making a constitutional challenge to the conditions of his prison life, but
23 not to the fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir.
24 2003) (emphasis added), quoting Preiser, 411 U.S. at 498-99 (holding that a writ of
25 habeas corpus is “explicitly and historically designed” to provide a state prisoner with the
26 “exclusive” means to “attack the validity of his confinement” in federal court).
27 Because Plaintiff seeks damages based on an allegedly unlawful sentence, he may
28 not proceed pursuant to § 1983, unless that conviction and/or sentence has already been
1 invalidated. Heck, 512 U.S. at 486-87; Ramirez, 334 F.3d at 855-56 (“Absent such a
2 showing, ‘[e]ven a prisoner who has fully exhausted available state remedies has no
3 cause of action under § 1983.’”), quoting Heck, 512 U.S. at 489.
4 Thus, because Plaintiff does not claim to have already invalidated his sentence by
5 way of direct appeal, executive order, or through the issuance of either a state or federal
6 court writ of habeas corpus, Heck, 512 U.S. at 487, his current Complaint must be
7 dismissed in its entirety for failing to state a claim upon which § 1983 relief can be
8 granted pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii) and § 1915A(b)(1).
9 D. Prosecutorial Immunity
10 Even if Plaintiff is able to show that the Heck bar does not apply, to the extent
11 Plaintiff seeks monetary damages against Defendants Swenson and Brown, his
12 Complaint must also be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) & 1915A(b)
13 because Swenson and Brown are entitled to absolute prosecutorial immunity. See Van de
14 Kamp v. Goldstein, 555 U.S. 335, 341 (2009) (state prosecutors are entitled to absolute
15 prosecutorial immunity for acts taken in their official capacity); Imbler v. Pachtman, 424
16 U.S. 409, 427, 430-31 (1976) (holding prosecutors absolutely immune from civil suits for
17 damages under § 1983 for initiating criminal prosecutions and presenting cases); Olsen v.
18 Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004) (“Absolute immunity is
19 generally accorded to judges and prosecutors functioning in their official capacities”);
20 Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989) (finding claim against prosecutors
21 with clear immunity legally frivolous within the meaning of section 1915) (citation
22 omitted).
23 Thus, for all these reasons, the Court finds Plaintiff’s Complaint both fails to state
24 a claim upon which § 1983 relief may be granted and seeks monetary damages from
25 defendants who are immune. Therefore, it must be DISMISSED sua sponte and in its
26 entirety pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Lopez, 203 F.3d at 1126-
27 27; Wilhelm, 680 F.3d at 1121; Chavez v. Robinson, 817 F.3d 1162, 1167 (9th Cir. 2016)
28 (noting § 1915(e)(2)(b)(iii) requires sua sponte dismissal of complaints seeking
1 || “monetary relief against a defendant who is immune from such relief,” and noting its
2 || “appli[cation] to absolute immunity.”’).
3 Conclusion and Orders
4 For the reasons explained, the Court DISMISSES Plaintiff's Complaint sua sponte
5 || failing to state a claim upon which § 1983 relief can be granted and for seeking monetary
6 damages against immune defendants pursuant to 28 U.S.C. § 1915A(b).
7 Plaintiff may file an Amended Complaint on or before June 15, 2020. His
8 || Amended Complaint must cure all the deficiencies of pleading noted and must be
9 ||complete by itself without reference to his original pleading. Any Defendants not named
10 any claim not re-alleged in his Amended Complaint will be considered waived. See
11 Cal. CivLR 15.1; Hal Roach Studios, Inc. y. Richard Feiner & Co., Inc., 896 F.2d
12 || 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v.
13 || Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with
14 || leave to amend which are not re-alleged in an amended pleading may be “considered
15 || waived if not repled.”).
16 If Plaintiff fails to file an Amended Complaint by June 15, 2020, the Court will
17 || enter a final Order dismissing this civil action based both on his failure to state a claim
18 || upon which relief can be granted and for seeking monetary damages against immune
19 || defendants pursuant to 28 U.S.C. § 1915A(b), and his failure to prosecute in compliance
20 || with a court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th
21 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint,
22 district court may convert the dismissal of the complaint into dismissal of the entire
23 action.”’).
24 IT ISSO ORDERED.
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26 || Dated: May 14, 2020 ©
2] Hon, Anthony J.Battaglia
28 United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10081134. Public record. Not legal advice.