Guerrero v. So

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6

7 UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA

9

10 JON GUERRERO, Case No.: 3:20-cv-01117-GPC-MSB

Inmate #1719376,

11

ORDER:

Plaintiff,

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vs. (1) GRANTING MOTION TO

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PROCEED IN FORMA PAUPERIS

KENNETH SO;

14 [ECF No. 3]

MAKENZI HARVEY;

15 DAN LEE TANDEN;

AND

WHITNEY ANTRUM,

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Defendants. (2) DISMISSING CIVIL ACTION

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PURSUANT TO 28 U.S.C.

18 § 1915(e)(2)(B) AND

28 U.S.C. § 1915A(b)

19

20

21 Plaintiff Jon Guerrero, currently incarcerated at California State Hospital in Patton,

22 California (“DSH-Patton”), and proceeding pro se, has filed this civil action pursuant to 28

23 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of the Federal Bureau of

24 Narcotics, 403 U.S. 388 (1971). See Compl., ECF No. 1 at 1. While the exact nature of his

25 suit is unclear, Plaintiff seeks trillions of dollars in monetary damages against a superior

26 court judge, deputy district attorney, public defender, and a psychologist or psychiatrist, all

27 of whom appear involved in his ongoing San Diego County Superior Court criminal

28 proceedings in Case No. CD267850. Id. at 2‒7.

1 I. Procedural Background

2 Because Plaintiff did not pay the $400 civil filing fee required by 28 U.S.C.

3 § 1914(a) at the time he filed his Complaint, and did not request leave to proceed in forma

4 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), the Court dismissed his suit on July 6,

5 2020. See ECF No. 2. The Court granted Plaintiff leave to re-open the case by paying the

6 filing fee, or by submitting a motion to proceed IFP, but cautioned that should he meet the

7 definition of a “prisoner” under 28 U.S.C. § 1915(h), he would nevertheless be required to

8 pay the full filing in installments pursuant to 28 U.S.C. § 1915(b) and regardless of whether

9 his Complaint was subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B).1

10 See ECF No. 2 at 2‒3, 4 n.3.

11 In response, Plaintiff has since re-opened his case by filing a Motion to Proceed IFP.

12 See ECF No. 3.

13 II. Motion to Proceed IFP

14 As Plaintiff now knows, all parties instituting any civil action, suit or proceeding in

15 a district court of the United States, except an application for writ of habeas corpus, must

16 pay a filing fee of $400.2 See 28 U.S.C. § 1914(a). This case may proceed despite Plaintiff’s

17 failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28

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1 Plaintiff’s status was unclear at the time. See ECF No. 2 at 2 n.2 This is because DSH-

21 Patton is a forensic psychiatric hospital located San Bernardino County. See

https://www.dsh.ca.gov/Patton/index.html (last visited Oct. 14, 2020). DSH-Patton

22

“provides treatment to forensically and civilly committed patients within a secure treatment

23 area,” id., but also houses persons who are found incompetent to stand trial pursuant to Cal.

Penal Code § 1370, and “persons judged by the court to be guilty of a crime, but not guilty

24

because they were insane at the time of the crime are committed” pursuant to Cal. Penal

25 Code § 1026. Id.

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2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative

27 fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court

Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does

28

1 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);

2 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). As required by the Prison

3 Litigation Reform Act (“PLRA”), prisoners proceeding IFP remain obligated to pay the

4 entire fee in “increments” or “installments,” Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627,

5 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of

6 outcome. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th

7 Cir. 2002). A “prisoner” is defined as “any person” who at the time of filing is “incarcerated

8 or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated

9 delinquent for, violations of criminal law or the terms or conditions of parole, probation,

10 pretrial release, or diversionary program.” 28 U.S.C. § 1915(h); Taylor, 281 F.3d at 847.

11 Section 1915(a)(2) requires all persons seeking to proceed without full prepayment

12 of fees to submit an affidavit that includes a statement of all assets possessed and

13 demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir.

14 2015). In support of this affidavit, section 1915(a)(2) also requires that prisoners “seeking

15 to bring a civil action ... without prepayment of fees ... shall submit a certified copy of the

16 trust fund account statement (or institutional equivalent) ... for the 6-month period

17 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.

18 King, 398 F.3d 1113, 1119 (9th Cir. 2005).

19 From the prisoner’s certified trust account statement, the Court must assess an initial

20 payment of 20% of (a) the average monthly deposits in the account for the past six months,

21 or (b) the average monthly balance in the account for the past six months, whichever is

22 greater, unless he has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The

23 institution having custody of the prisoner then must collect subsequent payments, assessed

24 at 20% of the preceding month’s income, in any month in which his account exceeds $10,

25 and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C.

26 § 1915(b)(2); Bruce, 136 S. Ct. at 629.

27 / / /

28 / / /

1 A. 28 U.S.C. § 1915(h)

2 This Court and others have found that 28 U.S.C. § 1915(h)’s definition of “prisoner”

3 does not apply to plaintiffs who have been committed to a state hospital after being

4 adjudicated not guilty by reason of insanity (“NGI”) pursuant to California Penal Code

5 § 1026. See e.g., Smith v. California, 2014 WL 2180532, *1 (S.D. Cal. May 22, 2014)

6 (finding civil detainee at DSH-Patton was not required to comply with PLRA filing fee

7 provisions); accord Miesegaes v. Allenby, No. CV 15-1574 CJC (JC), 2015 WL 13763858,

8 at *1 n.2 (C.D. Cal. May 6, 2015); Mullen v. Surtshin, 590 F. Supp. 2d 1233, 1240 (N.D.

9 Cal. 2008) (finding plaintiff involuntarily committed to state hospital based on NGI

10 adjudication need not comply with PLRA exhaustion requirement), reconsideration

11 denied, 2009 WL 734673 (N.D. Cal. Mar. 18, 2009).

12 Persons charged with a criminal offense but found to be incompetent “during the

13 pendency of [the] action and prior to judgment,” however, may have their criminal

14 prosecution suspended until mental competence has been restored. See Cal. Penal Code

15 §§ 1368, 1369. If found competent at the § 1369 trial, the criminal process resumes, i.e.,

16 the defendant can be tried and judgment pronounced. See Cal. Penal Code § 1370(a)(1)(A).

17 If found incompetent at the § 1369 trial, the criminal trial proceeding or judgment remain

18 suspended until competency is restored. See id. § 1370(a)(1)(B). The defendant determined

19 to be incompetent is then transferred to a state hospital by the court. See id.

20 § 1370(a)(1)(B)(i). But “[h]ospitalization under § 1370 is part of the criminal proceedings

21 against the defendant rather than a civil matter.” In re Rosenbalm, No. C 06-7801 SI PR,

22 2007 WL 1593207, at *2 (N.D. Cal. June 1, 2007). And “[t]hough … at a state hospital

23 rather than in a county jail,” a person found incompetent pursuant to Penal Code § 1370

24 nevertheless “is being detained in a facility and accused of a violation of the criminal law

25 and therefore is a prisoner for purposes of § 1915.” Id. Thus, unlike a civil detainee or

26 immigration detainee who has no criminal charges pending against him, see Page v.

27 Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000) (finding person civilly committed pursuant

28 to California’s Sexually Violent Predators Act is not a “prisoner” within meaning of 28

1 U.S.C. § 1915); Agyeman v. INS, 296 F.3d 871, 885-86 (9th Cir.2002) (finding alien

2 detained pending civil deportation proceedings not a prisoner under the PLRA), a person

3 detained at a California State Hospital pending a competency determination still stands

4 “accused of ... violations of criminal law.” In re Rosenbalm, 2007 WL 1593207, at *2

5 (quoting 28 U.S.C. § 1915(h)).

6 As noted above, Plaintiff was incarcerated at DSH-Patton when he first filed his

7 Complaint on June 17, 2020, see Compl., at 1, and he remained there at the time he

8 submitted his Motion to Proceed IFP. See ECF No. 3 at 1. He alleges Defendants violated

9 his civil rights in San Diego Superior Court Criminal Case No. CD267850 in early June

10 2020. See Compl. at 6. In fact, Plaintiff has filed several other civil cases and habeas corpus

11 petitions in the Southern District over the last several months‒‒all of them while

12 incarcerated at DSH-Patton, and all seeking to challenge the validity of his ongoing

13 criminal proceedings in CD267850. See e.g., Guerrero v. Wallace, S.D. Cal. Civil Case

14 No. 3:20-cv-01113-LAB-WVG (petition for writ of habeas corpus pursuant to 28 U.S.C.

15 § 2241) (ECF No. 1); Guerrero v. Wallace, S.D. Cal. Civil Case No. 3:20-cv-01114-CAB-

16 KSC (petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254) (ECF No. 1);

17 Guerrero v. San Diego Superior Court, et al., S.D. Cal. Civil Case No. 3:20-cv-01116-

18 LAB-MSB (civil rights complaint pursuant to 42 U.S.C. § 1983) (ECF No. 1); and

19 Guerrero v. So, et al., S.D. Cal. Civil Case No. 3:20-cv-01346-CAB-LL (civil rights

20 complaint pursuant to 42 U.S.C. § 1983) (ECF No. 1); see also Bias v. Moynihan, 508 F.3d

21 1212, 1225 (9th Cir. 2007) (court “‘may take notice of proceedings in other courts, both

22 within and without the federal judicial system, if those proceedings have a direct relation

23 to matters at issue.’”) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir.

24 2002)).3

25

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27 3 All of these cases have been dismissed during preliminary screening due to Plaintiff’s

failure to pay the appropriate filing fees or properly move to proceed IFP, see 3:20-cv-

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1 These public records show Plaintiff meets the definition of “prisoner” under 28

2 U.S.C. § 1915(h) because he has not been not civilly committed at DSH-Patton nor

3 adjudicated NGI, but instead has been hospitalized pending Cal. Penal Code § 1370 mental

4 competency proceedings in San Diego Superior Court Criminal Case No. CD267850. See

5 Guerrero v. Wallace, S.D. Cal. Civil Case No. 3:20-cv-01114-CAB-KSC, ECF No. 1 at

6 12‒15. On June 3, 2019, Plaintiff was found competent to stand trial and criminal

7 proceedings were re-instated. Id. at 12 (citing In the Matter of the Application of Jon

8 Guerrero, S.D. Superior Court Case No. HC 24531/ SCD 267850, Order Denying Petition

9 for Writ of Habeas Corpus, dated June 2, 2020). On January 27, 2020, Plaintiff pleaded

10 guilty to four counts of attempted murder, five counts of assault likely to produce great

11 bodily injury, two counts of arson of property, and admitted to “corresponding

12 enhancements and allegations” resulting in a stipulated sentence of four terms of life

13 without the possibility of parole, and an additional term of 56 years to life, plus 87 years.

14 Id. at 12‒13. A sentencing hearing was set for May 1, 2020, but was trailed due to the

15 COVID-19 pandemic. Id. at 13.

16 Therefore, the Court finds that because he stood accused, pleaded guilty, and awaited

17 sentence for violations of criminal law at the time he filed this civil action, see 28 U.S.C.

18 § 1915(h), Plaintiff’s IFP application must comply with 28 U.S.C. § 1915(a)(2), and he

19 “shall be required to pay the full amount of a filing fee” as required by 28 U.S.C.

20 § 1915(b)(1) and (2).

21 / / /

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25 name the proper respondent, state a cognizable federal claim, or allege exhaustion of state

judicial remedies. See 3:20-cv-01114-CAB-KSC (ECF No. 3). Plaintiff’s most recent

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§ 1983 complaint was found duplicative of his previously-filed complaint in 3:20-cv-

27 01116-LAB-MSB, and was therefore dismissed as frivolous pursuant to 28 U.S.C.

§ 1915A(b)(1). See 3:20-cv-1346-CAB-LL (ECF No. 3). Plaintiff also filed a motion to

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1 B. Plaintiff’s IFP Application

2 In support of his Motion to Proceed IFP, Plaintiff has submitted a DSH-Patton

3 Certificate and copy of his Patient Ledger Report from August 29, 2019 through May 14,

4 2020. See ECF No. 3 at 4, 7‒8; see also 28 U.S.C. § 1915(a)(2); Andrews, 398 F.3d at

5 1119. These documents show that while Plaintiff had a total of $484.43 deposited to his

6 account from December 2019 through May 2020, he carried an available balance of only

7 $.18 at time of filing. See ECF No. 3 at 7‒8. Based on this accounting, the Court GRANTS

8 Plaintiff’s Motion to Proceed IFP (ECF No. 3), and assesses a $16.14 initial partial filing

9 fee. See 28 U.S.C. § 1915(b)(1). Because his available balance at the time of filing is

10 insufficient to cover this initial fee, however, the Court will direct the Director of DSH-

11 Patton to collect it only if sufficient funds exist in Plaintiff’s account at the time this Order

12 is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be

13 prohibited from bringing a civil action or appealing a civil action or criminal judgment for

14 the reason that the prisoner has no assets and no means by which to pay the initial partial

15 filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding that 28 U.S.C.

16 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based

17 solely on a “failure to pay ... due to the lack of funds available to him when payment is

18 ordered.”). The Court will further direct the Director of DSH-Patton, his or her designee,

19 and any agency hereafter having custody of Plaintiff, to collect the remainder of the $350

20 balance of the filing fee required by 28 U.S.C. § 1914 and to forward payments to the Clerk

21 of the Court pursuant to 28 U.S.C. § 1915(b)(1).

22 III. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A

23 A. Standard of Review

24 As Plaintiff was advised on July 6, 2020, because he is a prisoner and is proceeding

25 IFP, his Complaint requires a preliminary screening pursuant to 28 U.S.C. § 1915(e)(2)

26 and § 1915A(b). Under these statutes, the Court must review and sua sponte dismiss an

27 IFP complaint, and any complaint filed by a prisoner seeking redress from a governmental

28 entity, or officer or employee of a governmental entity, which is frivolous, malicious, fails

1 to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith,

2 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2));

3 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. §

4 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or

5 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d

6 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d

7 680, 681 (7th Cir. 2012)).

8 “The standard for determining whether a plaintiff has failed to state a claim upon

9 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

10 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

11 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

12 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

13 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

14 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

15 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

16 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

17 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

18 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

19 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief

20 [is] ... a context-specific task that requires the reviewing court to draw on its judicial

21 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,

22 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

23 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

24 B. Plaintiff’s Allegations

25 Plaintiff names a judge, district attorney, public defender, and the psychologist or

26 psychiatrist involved his ongoing criminal proceedings in San Diego Superior Court Case

27 No. CD267850 as Defendants. See Compl., at 2, 6. His Complaint contains no factual

28 allegations whatsoever. Instead, it broadly proclaims Defendants “violat[ed] due process”

1 by proffering and/or relying on “false testimony evidence,” “prolong[ed] [his] trial,” and

2 “bargain[ed]” with each other to deny him a “fair trial.” Id. at 2‒4. He seeks unspecified

3 “equitable injunctive relief” and $21 trillion in general and punitive damages. Id. at 7.

4 C. Bivens

5 As a preliminary matter, the Court notes Plaintiff’s Complaint was filed pursuant to

6 Bivens; however, he does not allege that any Defendant acted under color of federal law.

7 “In Bivens, the Supreme Court ‘recognized for the first time an implied right of action for

8 damages against federal officers alleged to have violated a citizen’s constitutional rights.’”

9 Vega v. United States, 881 F.3d 1146, 1152 (9th Cir. 2018) (quoting Hernandez v. Mesa,

10 __ U.S. __, 137 S. Ct. 2003, 2006 (2017) (citation omitted)). “In the limited settings where

11 Bivens does apply, the implied cause of action is the ‘federal analog to suits brought against

12 state officials under Rev. Stat. § 1979, 42 U.S.C. § 1983.’” Iqbal, 556 U.S. at 675-76

13 (quoting Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006)).

14 However, because “[a]ctions under § 1983 and those under Bivens are identical save

15 for the replacement of a state actor under § 1983 by a federal actor under Bivens,” Van

16 Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991), and pro se pleadings are subject to liberal

17 construction, the Court will construe Plaintiff’s Complaint as if it were filed pursuant to 42

18 U.S.C. § 1983, instead of simply dismissing for failing to state a plausible Bivens cause of

19 action. See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (noting court’s duty to

20 construe pro se prisoner’s pleadings liberally when screening complaints pursuant to 28

21 U.S.C. § 1915A) (citation omitted); cf. Navarette v. Pioneer Med. Ctr., No. 12CV0629

22 WQH DHB, 2012 WL 4178682, at *3 (S.D. Cal. Sept. 17, 2012) (liberally construing pro

23 se prisoner’s § 1983 Complaint to instead arise under Bivens where prisoner claimed

24 violations of his civil rights by a federal actors).

25 D. 42 U.S.C. § 1983

26 “Section 1983 creates a private right of action against individuals who, acting under

27 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,

28 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive

1 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”

2 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations

3 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right

4 secured by the Constitution and laws of the United States, and (2) that the deprivation was

5 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698

6 F.3d 1128, 1138 (9th Cir. 2012).

7 E. Discussion

8 Even as liberally construed to arise under § 1983, Plaintiff’s Complaint fails to

9 comply with Federal Rule of Civil Procedure 8, is legally frivolous, fails to state a claim

10 upon which § 1983 relief may be granted, and seeks damages from defendants who are

11 absolutely immune. See Iqbal, 556 U.S. at 677-78; 28 U.S.C. §§ 1915(e)(2)(B)(ii), (iii),

12 1915A(b)(1), (2).

13 1. Rule 8

14 First, “[u]nder Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a

15 “short and plain statement of the claim showing that the pleader is entitled to relief.” Iqbal,

16 556 U.S. at 677-78. “[T]he pleading standard Rule 8 announces does not require ‘detailed

17 factual allegations,’ but it demands more than [the type of] unadorned, the defendant-

18 unlawfully-harmed-me accusation[s],” Plaintiff offers here. Id. (quoting Bell Atlantic v.

19 Twombly, 550 U.S. 544, 555 (2007)).

20 For example, Plaintiff invokes his right to “due process,” and claims Defendants

21 made undefined “mistakes,” committed “clerical errors,” relied on “false testimony

22 evidence,” and prolonged his trial. See Compl. at 2. He further charges the judge with

23 denying him an appeal, and claims his public defender “bargain[ed] with the prosecutor

24 and judge to become one of the D.A.’s favorites.” Id. However, “[w]hile legal conclusions”

25 like the denial of “due process” and a “fair trial,” see Compl. at 2, 6, “can provide the

26 framework of a complaint, they must be supported by factual allegations,” lest the Plaintiff

27 face dismissal. Iqbal, 556 U.S. at 679. Mere “labels” and “naked assertions devoid of

28 further factual enhancement” like those Plaintiff relies on here, simply “will not do.” Id. at

1 678 (citing Twombly, 550 U.S. at 555, 557).

2 2. Heck Bar

3 Second, to the extent Plaintiff seeks damages based on allegations that he has been

4 denied a fair trial in San Diego Superior Court Case No. CD267850, his suit may not

5 proceed as a civil rights action. There are two methods for state prisoners to raise

6 complaints related to their imprisonment in federal court. See Muhammad v. Close, 540

7 U.S. 749, 750 (2004) (“Federal law opens two main avenues to relief on complaints related

8 to imprisonment....”) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). In general,

9 claims of constitutional violations related to the “circumstances” of a prisoner’s

10 confinement must be brought in a civil rights action under § 1983, see id., while

11 constitutional challenges to the validity or duration of a prisoner’s confinement which seek

12 either “immediate release from prison” or the “shortening of [a state prison] term” must be

13 raised in a petition for federal habeas corpus under 28 U.S.C. § 2254, or through

14 appropriate state relief. Wilkinson v. Dotson, 544 U.S. 74, 78-79 (2005) (citations and

15 internal quotation marks omitted); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016)

16 (en banc) (“The Court has long held that habeas is the exclusive vehicle for claims brought

17 by state prisoners that fall within the core of habeas, and such claims may not be brought

18 in a § 1983 action.”) (citing Dotson, 544 U.S. at 81-82).

19 Here, because Plaintiff seeks damages based on claims that he has been unlawfully

20 convicted, sentenced, and/or incarcerated, his suit is subject to dismissal because he may

21 not pursue such claims in a civil rights action pursuant to 42 U.S.C. § 1983 without first

22 showing his conviction in San Diego Superior Court Case No. CD267850 has already been

23 invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

24 In Heck, the Supreme Court held:

25 in order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness would

26

render a conviction or sentence invalid, a § 1983 plaintiff must prove that the

27 conviction or sentence has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal authorized to make such

28

1 determination, or called into question by a federal court’s issuance of a writ

of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that

2

relationship to a conviction or sentence that has not been so invalidated is not

3 cognizable under § 1983.

4 Id. at 486-87; Washington v. Los Angeles County Sheriff’s Dep’t, 833 F.3d 1048, 1054-55

5 (9th Cir. 2016).

6 “Suits challenging the validity of the prisoner’s continued incarceration lie within

7 ‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state prisoner

8 who is making a constitutional challenge to the conditions of his prison life, but not to the

9 fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003)

10 (emphasis added), quoting Preiser, 411 U.S. at 498-99 (holding that a writ of habeas corpus

11 is “explicitly and historically designed” to provide a state prisoner with the “exclusive”

12 means to “attack the validity of his confinement” in federal court).

13 Because Plaintiff seeks damages based on allegations that he has not received a fair

14 trial, and asks that his criminal proceedings in CD267850 be “reversed,” see Compl. at 3,

15 6, he may not proceed pursuant to § 1983, unless and until that conviction has been

16 invalidated. Heck, 512 U.S. at 486-87; Ramirez, 334 F.3d at 855-56 (“Absent such a

17 showing, ‘[e]ven a prisoner who has fully exhausted available state remedies has no cause

18 of action under § 1983.’”), quoting Heck, 512 U.S. at 489. A federal district court cannot

19 “reverse” a state court criminal conviction pursuant to 42 U.S.C. § 1983, and an award of

20 damages based on that conviction would necessarily imply its constitutional validity and

21 consequently affect the duration of his confinement. See Heck, 512 U.S. at 487; see also

22 Pattillo v. Lombardo, No. 2:17-CV-01849-JAD-VCF, 2017 WL 3622778, at *4 (D. Nev.

23 Aug. 23, 2017) (“When a prisoner challenges the legality or duration of his custody, raises

24 a constitutional challenge which could entitle him to an earlier release … or seeks damages

25 for purported deficiencies in his state court criminal case, which effected a conviction or

26 lengthier sentence, his sole federal remedy is the writ of habeas corpus.”).

27 Because Plaintiff does not claim to have already invalidated the conviction which

28 forms the basis of his suit by way of direct appeal, executive order, or through the issuance

1 of either a state or federal court writ of habeas corpus, Heck, 512 U.S. at 487, his Complaint

2 must be dismissed sua sponte and in its entirety for failing to state a claim upon which

3 § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). See

4 Phillipi v. Does, No. CIV. 11-2612 DMS RBB, 2011 WL 6400303, at *2 (S.D. Cal. Dec.

5 20, 2011) (sua sponte dismissing civil rights action pursuant to 28 U.S.C. § 1915(e)(2) and

6 § 1915A because “habeas corpus is the exclusive federal remedy whenever the claim for

7 damages depends on a determination that … the sentence currently being served is

8 unconstitutionally long.”) (citing Edwards v. Balisok, 520 U.S. 641, 643-44 (1997); Heck,

9 512 U.S. at 486–87; Preiser, 411 U.S. at 500); Lopez, 203 F.3d at 1126-27; Wilhelm, 680

10 F.3d at 1121.

11 3. Judicial, Prosecutorial & Witness Immunity

12 Third, to the extent Plaintiff seeks damages against Judge So for “not giving [him]

13 an appeal,” for “breach of trust,” and for “postponing [his] case,” see Compl., at 2, 4, his

14 claims are legally frivolous, because “[j]udges are absolutely immune from damage

15 liability for acts performed in their official capacities.” Ashelman v. Pope, 793 F.2d 1072,

16 1075 (9th Cir. 1986) (en banc) (“A judge lacks immunity where [s]he acts in the clear

17 absence of all jurisdiction, or performs an act that is not judicial in nature.”) (internal

18 quotation marks and citations omitted); Pierson v. Ray, 386 U.S. 547, 553-55 (1967);

19 Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001). “Issuing orders, setting

20 schedules, and remanding criminal defendants into custody” are all acts performed within

21 a trial judge’s official capacity. Thomas v. Shah, No. 5:18-CV-02193-AG (SHK), 2018 WL

22 5734593, at *2 (C.D. Cal. Oct. 31, 2018); see also Mainez v. Gore, No. 3:17-CV-01359-

23 JAH-JLB, 2017 WL 4005269, at *5 (S.D. Cal. Sept. 11, 2017) (finding § 1983 claims for

24 monetary damages against Superior Court Judge subject to sua sponte dismissal as

25 frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) & 1915A(b)).

26 To the extent Plaintiff claims Assistant District Attorney Makenzi Harvey also

27 “violat[ed] due process,” by “prolonging [his] trial,” and making “clerical errors,” see

28 Compl. at 2, 4, his Complaint must also be dismissed pursuant to 28 U.S.C.

1 § 1915(e)(2)(B)(iii) & 1915A(b) because Harvey is entitled to absolute prosecutorial

2 immunity. See Van de Kamp v. Goldstein, 555 U.S. 335, 341 (2009) (state prosecutors are

3 entitled to absolute prosecutorial immunity for acts taken in their official capacity); Imbler

4 v. Pachtman, 424 U.S. 409, 427, 430-31 (1976) (holding prosecutors absolutely immune

5 from civil suits for damages under § 1983 for initiating criminal prosecutions and

6 presenting cases); Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004)

7 (“Absolute immunity is generally accorded to judges and prosecutors functioning in their

8 official capacities”); Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989) (finding claim

9 against prosecutors with clear immunity legally frivolous within the meaning of section

10 1915) (citation omitted).

11 To the extent Plaintiff also seeks damages against Whitney Antrum, a psychologist

12 or psychiatrist involved in his state court competency proceedings, based on claims that he

13 or she proffered “false testimony evidence,” see Compl. at 2, his Complaint must also be

14 dismissed on immunity grounds pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) and

15 § 1915A(b)(2). See Rosenbalm, 2010 WL 2764439, at *5 (dismissing § 1983 damages

16 claims against psychologist alleged to have committed perjury during Cal. Penal Code

17 § 1370 competency proceedings pursuant to 28 U.S.C. § 1915A(b)(1), (2) based on

18 absolute witness immunity) (citing Briscoe v. LaHue, 460 U.S. 325, 329–46 (1983); Burns

19 v. County of King, 883 F.2d 819 (9th Cir. 1989)).

20 4. “Under Color” Requirement

21 To the extent Plaintiff names his appointed public defender, Dan Lee Tanden, as a

22 Defendant, see Compl. at 1-2, and alleges Tanden was “very poor at objecting” while

23 representing Plaintiff during criminal proceedings in San Diego Criminal Case No.

24 CD267850, he also fails to state a claim upon which section 1983 relief can be granted. See

25 28 U.S.C. § 1915(e)(2)(B)(ii). “[A] public defender does not act under color of state law

26 when performing a lawyer’s traditional functions as counsel to a defendant in a criminal

27 proceeding.” Polk County v. Dodson, 454 U.S. 312, 325 (1981); Garnier v. Clarke, 332

28 Fed. Appx. 416 (9th Cir. 2009) (affirming district court’s sua sponte dismissal of prisoner’s

1 section 1983 claims against appointed counsel); Schmidt v. Mize, No. 18-CV-00725-BAS-

2 PCL, 2018 WL 2411750, at *3 (S.D. Cal. May 29, 2018) (sua sponte dismissing prisoner’s

3 § 1983 claims against public defender pursuant to 28 U.S.C. § 1915(e)(2)).

4 F. Leave to Amend

5 Finally, while the Court would normally grant Plaintiff leave to amend in light of his

6 pro se status, it concludes that doing so in this case would be futile. See Lopez, 203 F.3d at

7 1127; Schmier v. U.S. Court of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir.

8 2002) (recognizing “[f]utility of amendment” as a proper basis for dismissal without leave

9 to amend).

10 Amendment is futile because even if Plaintiff could somehow allege facts to show

11 Defendants violated his constitutional rights during the course of his criminal proceedings

12 in San Diego Superior Court Case No. CD267850, and include facts to suggest the named

13 Defendants could be liable for damages under § 1983, he still could not proceed because

14 he has yet to invalidate his conviction and/or sentence via direct appeal or through the

15 issuance of a federal writ of habeas corpus. See Heck, 512 U.S. at 486-87.

16 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case

17 No. 3:05-cv-00452–MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing

18 United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v.

19 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take

20 notice of proceedings in other courts, both within and without the federal judicial system,

21 if those proceedings have a direct relation to matters at issue.’” Bias, 508 F.3d at 1225

22 (citations omitted).

23 Here, the Court takes judicial notice of Guererro v. Wallace, S. D. Cal. Civil Case

24 No. 3:20-cv-01114-CAB-KSC, in which Plaintiff also filed a writ of habeas corpus seeking

25 to challenge the constitutional validity of his criminal proceedings in San Diego Superior

26 Court Case No. CD267850 in this Court pursuant to 28 U.S.C. § 2254. See id., ECF No. 1,

27 “Pet.” at 1‒11. Plaintiff’s habeas petition, as well as an attached exhibit, a June 2, 2020

28 San Diego Superior Court Order denying his petition for writ of habeas corpus in San Diego

1 Superior Court Case No. HC24531, see id. at 12‒14, both demonstrate that efforts to

2 invalidate Plaintiff’s conviction in CD267850 have not yet been successful. Therefore,

3 because Plaintiff’s state and federal collateral proceedings reveal he cannot yet amend his

4 Complaint to allege the additional facts required to show either that the underlying

5 conviction or sentence which forms the basis of his claims in this case has already been

6 invalidated, or that any of the Defendants he seeks to sue for money damages could be held

7 liable under § 1983, the Court denies leave to amend as futile. See Lopez, 203 F.3d at 1127;

8 Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (noting that leave to amend is not

9 required if it is “absolutely clear that the deficiencies of the complaint could not be cured

10 by amendment.”) (internal citations omitted).

11 IV. Conclusion and Orders

12 For the reasons discussed, the Court:

13 1) GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 3);

14 2) DIRECTS the Director of DSH-Patton, or his or her designee, to collect from

15 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing monthly

16 payments from his account in an amount equal to twenty percent (20%) of the preceding

17 month’s income and forwarding those payments to the Clerk of the Court each time the

18 amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS

19 SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO

20 THIS ACTION;

21 3) DIRECTS the Clerk of the Court to serve a copy of this Order on the Director,

22 DSH-Patton, 1600 9th Street, Rm 151, Sacramento, California, 95814;

23 4) DISMISSES Plaintiff’s Complaint as frivolous, for failing to state a claim,

24 and for seeking damages from defendants who are absolutely immune pursuant to 28

25 U.S.C. § 1915(e)(2)(B)(ii), (iii) and § 1915A(b)(1), (2) without prejudice,4 but without

26

27

4 See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (court should dismiss

28

1 || leave to amend;

2 5) CERTIFIES that an IFP appeal from this Order would be frivolous and

3 ||therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See

4 || Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548,

5 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal

6 || would not be frivolous); and

7 6) DIRECTS the Clerk of Court to enter a final judgment of dismissal and to

8 || close the file.

9 IT IS SO ORDERED.

10 Dated: November 3, 2020 <=

12 United States District Judge

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26 he ever succeeds in invalidating his conviction.”); Briggs v. Enriquez, No. CV 17-4615-

27 || FMO(B), 2017 WL 6210802, at *4 (C.D. Cal. Nov. 1, 2017), report and recommendation

28 adopted, No. CV 17-4615-FMO(EB), 2017 WL 6209818 (C.D. Cal. Dec. 7, 2017).

17 oo