Dean v. Appelate Defenders

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 DAVID ANTHONY DEAN, Case No.: 24-cv-2173-MMA (KSC)

CDCR #BT-2698,

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ORDER:

Plaintiff,

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vs. 1) GRANTING MOTION TO

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PROCEED IN FORMA PAUPERIS;

APPELLATE DEFENDERS, et al.,

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Defendants. [Doc. No. 12]

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17 2) DISMISSING COMPLAINT FOR

FAILURE TO STATE A CLAIM;

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AND

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[Doc. No. 1]

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21 3) DENYING AS MOOT

REMAINING MOTIONS

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23 [Doc. Nos. 10–11, 15, 18, 20]

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25 On November 18, 2024, Plaintiff David Anthony Dean, a state prisoner proceeding

26 pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983, accompanied by a

27 Motion to Proceed In Forma Pauperis (“IFP”), a motion for service, two notices of

28 lodgment, and three declarations. Doc. Nos. 1–8. On December 11, 2024, the Court

1 denied IFP, denied the motion for service, and dismissed this action without prejudice for

2 failure to satisfy the filing fee requirement. Doc. No. 9. Plaintiff has since filed two IFP

3 motions, a motion to add a defendant, two motions to preserve evidence, three additional

4 notices of lodgment, a notice of correction, and a notice to add a defendant. Doc.

5 Nos. 10–20.

6 I. MOTION TO PROCEED IFP

7 All parties instituting any civil action, suit or proceeding in a district court of the

8 United States, except an application for writ of habeas corpus, must pay a filing fee of

9 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55,

10 although the administrative fee does not apply to persons granted leave to proceed IFP.

11 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee

12 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure

13 to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

14 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). A prisoner

15 seeking leave to proceed IFP must submit a “certified copy of the trust fund account

16 statement (or institutional equivalent) for . . . the 6-month period immediately preceding

17 the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113,

18 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an

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

20 months, or (b) the average monthly balance in the account for the past six months,

21 whichever is greater, unless the prisoner has insufficient assets. See 28 U.S.C.

22 § 1915(b)(1) & (4); Bruce v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed

23 IFP must pay any remaining balance in “increments” or “installments,” regardless of

24 whether their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1) & (2); Bruce, 577

25 U.S. at 84.

26 In support of his second IFP motion, Plaintiff has submitted a copy of his

27 California Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement

28 Report and Prison Certificate attested to by a CDCR trust account official. Doc. No. 13

1 at 1–2. The document shows he had an average monthly balance of $103.75 and average

2 monthly deposits of $108.29, with an available balance of $0.00. Id. The Court therefore

3 GRANTS Plaintiff’s second motion to proceed IFP, Doc. No. 12, and assesses no initial

4 partial filing fee. See Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding that

5 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP

6 case based solely on a “failure to pay . . . due to the lack of funds available to him when

7 payment is ordered”). The Court directs the Secretary of the CDCR or his designee to

8 collect and forward to the Clerk of Court the $350 balance of the filing fee required by 28

9 U.S.C. § 1914 pursuant to the installment payment provisions of 28 U.S.C. § 1915(b)(1).

10 The Court DENIES Plaintiff’s third motion to proceed IFP, Doc. No. 18, as moot.

11 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

12 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

13 Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua

14 sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous,

15 malicious, fails to state a claim, or seeks damages from defendants who are immune.

16 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (28 U.S.C.

17 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C.

18 § 1915A(b)).

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

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

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

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

23 Cir. 2012) (noting that § 1915A screening “incorporates the familiar standard applied in

24 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”).

25 Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true,

26 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

27 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

28 “Determining whether a complaint states a plausible claim for relief [is] . . . a context-

1 specific task that requires the reviewing court to draw on its judicial experience and

2 common sense.” Id.

3 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,

4 acting under color of state law, violate federal constitutional or statutory rights.”

5 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a

6 source of substantive rights, but merely provides a method for vindicating federal rights

7 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal

8 quotation marks omitted). “To establish § 1983 liability, a plaintiff must show both

9 (1) deprivation of a right secured by the Constitution and laws of the United States, and

10 (2) that the deprivation was committed by a person acting under color of state law.” Tsao

11 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

12 Plaintiff alleges Defendant Love, his appellate counsel employed by Defendant

13 Appellate Defenders, filed a fraudulent brief contending Plaintiff was delusional in an

14 attempt to cover up that Plaintiff was held without a warrant and illegally seized as

15 Plaintiff had asserted in the guilt phase of his criminal trial in case number D081767.1

16 Doc. No. 1 at 2, 4: Doc. No. 1-2 at 1. Plaintiff claims that Defendant Deputy Attorney

17 General Roberts was aware the brief was fraudulent. Doc. No. 1 at 2. He claims

18 Defendants Appellate Court Justices McConnell, O’Rourke, and Dato, who signed the

19 appellate court opinion, and Defendant Riverside County Superior Court Judge Malloy,

20 were complicit in the failure to correct the trial error regarding the warrant, and that

21 Defendants Deputy Attorneys General Cavier and Weyl were aware of and failed to

22 correct that error. Id. at 3–6. Plaintiff seeks relief in the form of an injunction preventing

23 Defendants “from further abusing plaintiff from the streets to the courts, plaintiff also

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26 1 This is a reference to the appellate court opinion on appeal of Plaintiff’s conviction for burglary and

assault with a deadly weapon in Riverside County Superior Court in which he pleaded not guilty by

27 reason of insanity. See People v. Dean, No. D081767, 2024 WL 4578401, (Cal. Ct. App. Oct. 25,

2024). On October 25, 2024, the appellate court vacated that conviction and remanded with instructions

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1 asks for arrest/prosecution, and a stay of there 10-25-24 sesame st big bird bus

2 fraudulently denied opinion,” along with up to a billion dollars in money damages. Id. at

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4 Defendants Justices McConnell, O’Rourke, Dato, and Judge Malloy are immune

5 from actions arising from the discharge of their official duties as alleged by Plaintiff here.

6 See Mireles v. Waco, 502 U.S. 9, 11 (1991) (“Like other forms of official immunity,

7 judicial immunity is an immunity from suit, not just from ultimate assessment of

8 damages.”); Moore v. Urquhart, 899 F.3d 1094, 1104 (9th Cir. 2018) (“Section 1983 . . .

9 provides judicial officers immunity from injunctive relief even when the common law

10 would not.”). This immunity applies “however erroneous the act may have been, and

11 however injurious in its consequences it may have proved to the plaintiff.” Cleavinger v.

12 Saxner, 474 U.S. 193, 199–200 (1985). “Grave procedural errors or acts in excess of

13 judicial authority do not deprive a judge of this immunity.” Schucker v. Rockwood, 846

14 F.2d 1202, 1204 (9th Cir. 1988); Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir.1986)

15 (en banc) (“[A] conspiracy between judge and prosecutor to predetermine the outcome of

16 a judicial proceeding, while clearly improper, nevertheless does not pierce the immunity

17 extended to judges and prosecutors.”). Immunity is only inapplicable when the action is

18 not taken in the judge’s judicial capacity or performed in the absence of all jurisdiction.

19 Mireles, 502 U.S. at 11–12. Therefore, Plaintiff has not stated a claim against the judge

20 Defendants.

21 Plaintiff’s claims against Defendants Deputy Attorneys General Roberts, Cavier,

22 and Weyl are barred by the doctrine of quasi-judicial immunity. Prosecutors are entitled

23 to absolute quasi-judicial immunity from liability for damages under 42 U.S.C. § 1983

24 when the alleged wrongful acts were committed by a prosecutor in the performance of an

25 integral part of the criminal judicial process as alleged by Plaintiff here. See e.g., Imbler

26 v. Pachtman, 424 U.S. 409, 427–29 (1976); Bly-Magee v. California, 236 F.3d 1014,

27 1018 (9th Cir. 2001) (quasi-judicial absolute immunity applies to attorneys general for

28 conduct related to their state litigation duties in civil suits); Garmon v. Cnty. of Los

1 Angeles, 828 F.3d 837, 843 (9th Cir. 2016) (state prosecutors are absolutely immune

2 from suit for “‘initiating a prosecution’ and ‘presenting the State’s case’”) (quoting

3 Imbler, 424 U.S. at 431). Thus, Plaintiff has failed to state a claim against the prosecutor

4 Defendants.

5 Plaintiff has also failed to state a claim against Defendant appellate attorney Love.

6 A public attorney “does not act under color of state law when performing a lawyer’s

7 traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v.

8 Dodson, 454 U.S. 312, 325 (1981); Miranda v. Clark County, Nevada, 319 F.3d 465, 468

9 (9th Cir. 2003) (“[The appointed attorney] was, no doubt, paid by government funds and

10 hired by a government agency. Nevertheless, his function was to represent his client, not

11 the interests of the state or county.”); Garnier v. Clarke, 332 F. App’x 416 (9th Cir.

12 2009) (affirming district court’s sua sponte dismissal of prisoner’s § 1983 claims against

13 appointed counsel). Plaintiff has therefore failed to state a claim against his appellate

14 counsel as well.

15 The only remaining Defendant, Appellate Defenders, is not a proper defendant in a

16 § 1983 action because it is not a person within the meaning of that statute. See Tsao, 698

17 F.3d at 1138 (“To establish § 1983 liability, a plaintiff must show both (1) deprivation of

18 a right secured by the Constitution and laws of the United States, and (2) that the

19 deprivation was committed by a person acting under color of state law.”); Will v.

20 Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (holding that a state entity is not

21 considered a “person” under § 1983); Connick v. Thompson, 563 U.S. 51, 60 (2011)

22 (holding that under § 1983, local governments and their agencies are responsible only

23 “for their own illegal acts” and are not vicariously liable for their employees’ conduct)

24 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)). As such, Plaintiff has failed

25 to state a claim against Defendant Appellate Defenders.

26 Accordingly, based upon the foregoing, the Court finds that Plaintiff has failed to

27 state a plausible claim against any Defendant and therefore that his Complaint is subject

28 to sua sponte dismissal in its entirety pursuant to 28 U.S.C. §§ 1915(e)(2) and

1 1915A(b). Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. Because it is clear

2 Plaintiff cannot state a claim against any Defendant, the dismissal is without leave to

3 amend. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court

4 should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely

5 clear that the deficiencies of the complaint could not be cured by amendment.’”), quoting

6 Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012); United States ex rel. Insoon Lee v.

7 SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001) (“Futility of amendment

8 can, by itself, justify the denial of . . . leave to amend.”)

9 III. MOTIONS

10 Plaintiff has filed a motion to include another Judge as a defendant and a notice of

11 intent to add another Deputy District Attorney as a defendant. Doc. Nos. 10, 20. Adding

12 either one or both as a defendant would result in their dismissal for the reasons set forth

13 above. Thus, the Court DENIES the motion and notice. Plaintiff has also filed two

14 motions to preserve evidence. Doc. Nos. 11, 15. In light of the dismissal of this action,

15 the Court DENIES those motions as moot.3

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2 Plaintiff has not stated a claim for equitable relief in this action because he is seeking to have this

18 Court interfere with ongoing criminal proceedings in the Riverside County Superior Court, which, in

addition to the lack of habeas jurisdiction noted below, requires abstention. See Columbia Basin

19 Apartment Ass’n v. City of Pasco, 268 F.3d 791, 799 (9th Cir. 2001) (holding that absent extraordinary

circumstances, abstention under Younger v. Harris, 401 U.S. 37 (1971) is required when: (1) state

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judicial proceedings are ongoing; (2) the state proceedings involve important state interests; and (3) the

21 state proceedings afford an adequate opportunity to raise the federal issue); Middlesex County Ethics

Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982) (Younger “espouse[d] a strong federal

22 policy against federal-court interference with pending state judicial proceedings”); Juidice v. Vail, 430

U.S. 327, 337 (1977) (holding that if Younger abstention applies, a court may not retain jurisdiction but

23 should dismiss the action).

3 In the Complaint Plaintiff requests that this action be construed as a habeas petition if that would result

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in granting the relief he seeks. Doc. No. 1 at 8. This Court lacks habeas jurisdiction over a challenge to

25 Plaintiff’s conviction in the Riverside County Superior Court, which is located in the Central District of

California, Eastern Division, as Plaintiff is currently incarcerated at the High Desert State Prison in

26 Susanville, California, which is located in the Eastern District of California. See 28 U.S.C. § 2241(d)

(providing that a petition for writ of habeas corpus challenging a state court conviction may be filed in

27 the United States District Court of either the judicial district in which the petitioner is presently confined

or the judicial district in which he was convicted and sentenced). In any case, Petitioner indicates he has

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IV. CONCLUSION AND ORDERS

2 For the reasons explained, the Court:

3 1. GRANTS Plaintiff's second Motion to Proceed IFP (Doc. No. 12);

4 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from

5 || Plaintiff's prison trust account the $350 filing fee owed in this case by garnishing

6 ||monthly payments from his account in an amount equal to twenty percent (20%) of the

7 || preceding month’s income and forwarding those payments to the Clerk of the Court each

8 ||time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2);

9 3. DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail

10 || on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation,

11 || P.O. Box 942883, Sacramento, California, 94283-0001;

12 4. DENIES as moot Plaintiff's third motion to proceed IFP (Doc. No. 18), his

13 motion and notice to add defendants (Doc. Nos. 10, 20), and his motions to preserve

14 || evidence (Doc. Nos. 11, 15); and

15 5. DISMISSES Plaintiff's Complaint for failing to state a claim upon which

16 |/relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)Gi) & 1915A(b)(1) without

17 ||leave to amend. The Clerk of Court is directed to enter a final judgment of dismissal and

18 || close this case file.

19 IT IS SO ORDERED.

20 || Dated: January 23, 2025

21 Wiathse / hiypltr

22 HON. MICHAEL M. ANELLO

23 United States District Judge

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28 Central District of California. See Doc. No. 1 at 7, citing 24cv1173-CKD (E.D. Cal. 2024), transferred

and renumbered as 24cv00973-MWC (JPR) (C.D. Cal. 2024).