Dorado v. Stephan

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11 DANIEL DORADO, Case No.: 25-cv-0083-WQH (SBC)

CDCR #BN-7728,

12

ORDER:

Plaintiff,

13

vs. 1) GRANTING MOTIONS TO

14

PROCEED IN FORMA PAUPERIS,

SUMMER STEPHAN, San Diego District

15 and

Attorney; JESSICA COTO, Deputy San

16 Diego District Attorney; KATHERINE

2) DISMISSING COMPLAINT FOR

CRUMB, San Diego Police Detective;

17 FAILURE TO STATE A CLAIM

NANCY KARMELECH, Accuser; and

18 CHARLES ROGERS, Superior Court

Judge,

19

Defendants.

20

21

HAYES, Judge:

22

Plaintiff Daniel Dorado, a state prisoner proceeding pro se, has filed a civil rights

23

Complaint pursuant to 42 U.S.C. § 1983, accompanied by Motions to Proceed In Forma

24

Pauperis (“IFP”). (ECF Nos. 1-2, 6.1)

25

26

27 1 On January 13, 2025, Plaintiff filed his first Motion to Proceed IFP. (ECF No. 2.) On February 13,

2025, Plaintiff filed a second Motion to Proceed IFP. (ECF No. 6.) The two motions contain identical

28

1 I. Motions to Proceed IFP

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

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

4 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55,

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

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

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

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

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

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

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

12 filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119

13 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial

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

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

16 greater, unless the prisoner has insufficient assets. See 28 U.S.C. § 1915(b)(1), (4); Bruce

17 v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP must pay any remaining

18 balance in “increments” or “installments,” regardless of whether their action is ultimately

19 dismissed. 28 U.S.C. § 1915(b)(1)-(2); Bruce, 577 U.S. at 84.

20 In support of his IFP motions, Plaintiff has submitted a copy of his California

21 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report and

22 Prison Certificate attested to by a CDCR trust account official. (ECF No. 2 at 13-16; ECF

23 No. 6 at 11-14.) The document shows he had an average monthly balance of $156.01 and

24 average monthly deposits of $187.50, with an available balance of $0.00. (ECF No. 2 at

25 13-16; ECF No. 6 at 11-14.) The Court GRANTS Plaintiff’s motions to proceed IFP and

26 assesses no initial partial filing fee. See Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir.

27 2002) (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of

28 a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds available

1 to him when payment is ordered.”). Plaintiff remains obligated to pay the $350 balance of

2 the filing fee required by 28 U.S.C. § 1914 pursuant to the installment payment provisions

3 of 28 U.S.C. § 1915(b)(1).

4 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

5 A. Standard of Review

6 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a

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

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

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

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

11 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (citing 28 U.S.C. § 1915A(b)).

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

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

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

15 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

16 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the

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

18 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state

19 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

20 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a

21 complaint states a plausible claim for relief [is] ... a context-specific task that requires the

22 reviewing court to draw on its judicial experience and common sense.” Id.

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

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

25 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability,

26 a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws

27 of the United States, and (2) that the deprivation was committed by a person acting under

28 color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

1 B. Allegations in the Complaint

2 Plaintiff names as Defendants San Diego County District Attorney Summer Stephan,

3 San Diego County Deputy District Attorney Jessica Coto, San Diego County Superior

4 Court Judge Charles Rogers, San Diego Police Detective Katherine Crumb, and a person

5 named Nancy Karmelech who Plaintiff refers to as an “accuser.” (ECF No. 1 at 2-3.) He

6 claims they were all involved in his San Diego County Superior Court criminal

7 prosecution, which resulted in his December 2019 conviction for raping four women. (Id.;

8 ECF No. 1-26 at 25.)

9 Plaintiff alleges Defendants District Attorney Stephan and Deputy District Attorney

10 Coto committed prosecutorial misconduct by failing to disclose exculpatory evidence,

11 which delayed him from obtaining bail for six months in order to make him lose his

12 restaurant and his reputation and to damage his relationship with his family. (ECF No. 1

13 at 4-5, 13.) He alleges the San Diego District Attorney’s Office posted on its public website

14 that he had been charged with a lewd act on a minor, even though that charge did not appear

15 in the original charging document at the time of his arrest but was included in a charging

16 document several days later and then removed again several days after that. (Id. at 7.) He

17 states the post was not taken down until six months later when he was released on bail,

18 causing stress and anxiety from being incarcerated as an accused child sex offender,

19 resulting in death threats and physical assaults while he was incarcerated awaiting bail.

20 (Id.) Plaintiff alleges there were 38 statements made by Defendant Coto which were either

21 misleading or outright lies, and that 41 such statements were made by lead Detective

22 Crumb, 12 by another detective, and a total of 209 made throughout his trial under oath,

23 all of which should have been corrected by Defendant Coto in her role as the prosecutor or

24 by Defendant Crumb who sat at the prosecution table as lead detective. (Id. at 8.)

25 Plaintiff alleges Defendant Detective Crumb did not read Plaintiff his Miranda rights

26 until nine and one-half hours after he was arrested, committed perjury regarding statements

27 made during Plaintiff’s interrogation, colluded with the prosecutors and the trial judge to

28 prevent the jury from viewing a video of the interrogation which would have exposed the

1 perjury, and colluded with the prosecution to delay his bail and present false evidence and

2 perjured testimony. (Id. at 6, 9, 12.) Plaintiff alleges Defendant Judge Rogers misapplied

3 the law in calculating his sentence, which was based on perjured testimony, and colluded

4 with the prosecution to increase the number of charges from 14 at the time of his arrest to

5 35 by the time of trial to impose a longer sentence. (Id. at 10.) He alleges Judge Rogers

6 was biased, committed errors in admitting evidence, and “made the trial personal.” (Id.)

7 Plaintiff alleges that Defendant Karmelech, an “accuser,” manufactured evidence

8 without a chain of custody, and that on at least nine occasions during an interview with a

9 detective and at trial she admitted to deliberately erasing exonerating evidence which

10 would have confirmed all her accusations were complete lies, which Defendant Crumb

11 could have retrieved from Plaintiff’s cell phone seized upon his arrest, and which the trial

12 judge knew of and failed to address. (Id. at 11.) Plaintiff alleges Defendant Karmelech

13 committed perjury when she testified Plaintiff had a history of using date rape drugs to rape

14 women. (Id.)

15 Plaintiff states that he is currently proceeding through his second resentencing

16 proceeding and seeks relief in the form of immediate release from prison, an injunction

17 preventing retaliation, and money damages.2 (Id. at 14-15.)

18 C. Discussion

19 Defendant Judge Rogers is immune from actions arising from the discharge of his

20 official duties as alleged here, as the “immunity is not overcome by allegations of bad faith

21 or malice.” See Mireles v. Waco, 502 U.S. 9, 11 (1991) (“Like other forms of official

22

23

24

2 Plaintiff was charged with 35 felony counts of sex offenses against eight women, a jury convicted him

25 of 20 counts of sex offenses against four women, and in November 2020, he was sentenced to 40 years in

prison. See People v. Dorado, 105 Cal. App. 5th 717, 723-25 (2024). His conviction was affirmed on

26 appeal but remanded for resentencing under two resentencing statutes enacted while the appeal was

pending, and he was resentenced in April 2023 to 38 years. See id. at 725-28. On October 3, 2024, the

27 appellate court remanded again for resentencing based on a matter of first impression of state sentencing

law regarding the dual use of the same facts to impose an upper term and a mandatory consecutive term.

28

1 immunity, judicial immunity is an immunity from suit, not just from ultimate assessment

2 of damages.”). This immunity applies “however erroneous the act may have been, and

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

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

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

6 F.2d 1202, 1204 (9th Cir. 1988). “Judges’ immunity from civil liability should not be

7 affected by the motives with which their judicial acts are performed.” Ashelman v. Pope,

8 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc) (“[A] conspiracy between judge and

9 prosecutor to predetermine the outcome of a judicial proceeding, while clearly improper,

10 nevertheless does not pierce the immunity extended to judges and prosecutors.”). “A judge

11 will not be deprived of immunity because the action he took was in error, was done

12 maliciously, or was in excess of his authority; rather, he will be subject to liability only

13 where he has acted in the ‘clear absence of all jurisdiction.’” Stump v. Sparkman, 435 U.S.

14 349, 356-57 (1978). An act is judicial when “it is a function normally performed by a

15 judge” while acting in his or her judicial capacity. Id. at 362. Accordingly, the claim for

16 damages against Defendant Judge Rogers must be dismissed because it fails to state a claim

17 upon which relief may be granted and seeks monetary relief from a Defendant who is

18 immune from such relief. Id. The claim is legally frivolous. See Neitzke v. Williams, 490

19 U.S. 319, 325 (1989) (a complaint is frivolous “where it lacks an arguable basis either in

20 law or fact”); see also, e.g., Mainez v. Gore, No. 17cv1359-JAH (JLB), 2017 WL 4005269,

21 at *5 (S.D. Cal. Sept. 11, 2017) (finding § 1983 claims for monetary damages against judge

22 based on allegations regarding sentencing and presiding over criminal proceedings subject

23 to sua sponte dismissal as frivolous pursuant to 28 U.S.C. § 1915A(b)).

24 The claims for damages against Defendants District Attorney Stephan and Deputy

25 District Attorney Coto are barred by the doctrine of quasi-judicial immunity. Prosecutors

26 are entitled to absolute quasi-judicial immunity from liability for damages under 42 U.S.C.

27 § 1983 when the alleged wrongful acts were committed by a prosecutor in the performance

28 of an integral part of the criminal judicial process as alleged by Plaintiff here. Ashelman,

1 793 F.2d at 1078; Imbler v. Pachtman, 424 U.S. 409, 427-29 (1976); Garmon v. County of

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

3 from suit for “‘initiating a prosecution’ and ‘presenting the State’s case’” (quoting Imbler,

4 424 U.S. at 431)). Thus, Plaintiff has failed to state a § 1983 claim for damages against

5 Defendants Stephan and Coto.

6 Plaintiff has failed to state a § 1983 claim against Defendant Karmelech for her trial

7 testimony because she is a private citizen and is not alleged to be acting under color of state

8 law. See Tsao, 698 F.3d at 1138 (“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.”); Price

11 v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) (“[P]rivate parties are not generally acting

12 under color of state law.”). “It is beyond question that, when a private party gives

13 testimony in open court in a criminal trial, that act is not performed ‘under color of law.’”

14 Briscoe v. LaHue, 460 U.S. 325, 329-30 (1983). In addition, private party witnesses are

15 entitled to absolute immunity from claims for damages even if alleged to have conspired

16 with the authorities where the conspiracy is “inextricably tied” to their testimony. Paine

17 v. City of Lompoc, 265 F.3d 975, 980 (9th Cir. 2001). Thus, Plaintiff has failed to state a

18 § 1983 claim for damages against Defendant Karmelech.

19 Plaintiff has not stated a § 1983 claim for damages against the remaining Defendant,

20 Detective Crumb, nor stated a § 1983 claim for equitable relief against any Defendant,

21 based on allegations regarding his criminal proceedings, as such claims as currently alleged

22 sound only in habeas. Claims related to the “circumstances” of a prisoner’s confinement

23 are brought in a civil rights action, while constitutional challenges to the validity or

24 duration of a prisoner’s confinement must be raised in a petition for federal habeas corpus

25 under 28 U.S.C. § 2254. Muhammad v. Close, 540 U.S. 749, 750 (2004) (citing Preiser v.

26 Rodriguez, 411 U.S. 475, 500 (1973)); see also Nettles v. Grounds, 830 F.3d 922, 927 (9th

27 Cir. 2016) (en banc) (“The Court has long held that habeas is the exclusive vehicle for

28 claims brought by state prisoners that fall within the core of habeas, and such claims may

1 not be brought in a [civil rights] action.”) (citing Wilkinson v. Dotson, 544 U.S. 74, 81-82

2 (2005) (“[A] state prisoner’s § 1983 action is barred (absent prior invalidation)—no matter

3 the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit

4 (state conduct leading to conviction or internal prison proceedings)—if success in that

5 action would necessarily demonstrate the invalidity of confinement or its duration.”)). A

6 claim based on “harm caused by actions whose unlawfulness would render a conviction or

7 sentence invalid” is not cognizable outside of the habeas context unless Plaintiff “prove[s]

8 that the conviction or sentence has been reversed on direct appeal, expunged by executive

9 order, declared invalid by a state tribunal authorized to make such determination, or called

10 into question by a federal court’s issuance of a writ of habeas corpus.” Heck v. Humphrey,

11 512 U.S. 477, 486-87 (1994).

12 Thus, to the extent Plaintiff seeks relief based on claims he has been unlawfully

13 convicted, sentenced, and/or incarcerated, he may not pursue those claims in a civil rights

14 action without first showing his conviction has been invalidated. Id.; see also Ramirez v.

15 Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (“Suits challenging the validity of the prisoner’s

16 continued incarceration lie within ‘the heart of habeas corpus,’ whereas ‘a [civil rights]

17 action is a proper remedy for a state prisoner who is making a constitutional challenge to

18 the conditions of his prison life, but not to the fact or length of his custody.’”) (quoting

19 Preiser, 411 U.S. at 498-99 (holding that a writ of habeas corpus is “explicitly and

20 historically designed” to provide a prisoner with the exclusive means to attack the validity

21 of his confinement in federal court)). Because Plaintiff does not allege his conviction has

22 been invalidated by way of direct appeal, executive order, or through the issuance of a writ

23 of habeas corpus, and in fact contends his conviction has been affirmed on direct appeal

24 and he is currently proceeding through resentencing proceedings, all claims against all

25 Defendants as currently pleaded in the Complaint are subject to dismissal for failure to

26 state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and

27

28

1 § 1915A(b).

2 Finally, to the extent Plaintiff seeks to bring claims which do not sound in habeas,

3 such as based on his allegation he was assaulted while in custody, he has included only

4 conclusory allegations regarding his assault and has therefore failed to state a claim in this

5 regard. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of

6 action, supported by mere conclusory statements, do not suffice” to satisfy the plausibility

7 standard required to state a claim for relief). To the extent Plaintiff attempts to rely on the

8 exhibits attached to the Complaint to allege claims, they are not a substitute for factual

9 allegations which must be contained in the Complaint. See Arnold v. Hearst Mag. Media,

10 Inc., No. 19cv1969-JAH (MDD), 2020 WL 3469367, at *8 (S.D. Cal. June 24, 2020)

11 (“Exhibits attached to a complaint are not a substitute for factual allegations.”).

12 Accordingly, the Court finds that Plaintiff’s Complaint fails to state a plausible claim

13 for relief against any Defendant and is therefore subject to sua sponte dismissal in its

14 entirety pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Watison, 668 F.3d at 1112;

15 Wilhelm, 680 F.3d at 1121.

16 D. Leave to Amend

17 Although it appears unlikely Plaintiff will be able to amend his Complaint to state a

18 claim, because he is proceeding pro se, the Court will grant an opportunity to amend. See

19 Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not

20 dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C.

21

22

23

3 In addition, any claim for equitable relief in this action seeking to have this Court interfere with ongoing

24

criminal proceedings would require abstention at this time. See Columbia Basin Apartment Ass’n v. City

25 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 judicial proceedings are ongoing;

26 (2) the state proceedings involve important state interests; and (3) the state proceedings afford an adequate

opportunity to raise the federal issue); Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S.

27 423, 431 (1982) (Younger “espouse[d] a strong federal policy against federal-court interference with

pending state judicial proceedings”); Juidice v. Vail, 430 U.S. 327, 337 (1977) (holding that if Younger

28

1 § 1915(e)(2)(B)(ii)] unless it is absolutely clear that the deficiencies of the complaint could

2 not be cured by amendment.”) (internal quote marks omitted).

3 III. Conclusion and Orders

4 For the reasons explained, the Court:

5 1. GRANTS Plaintiff’s Motions to Proceed IFP [ECF Nos. 2, 6].

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

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

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

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

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

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

12 on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation,

13 P.O. Box 942883, Sacramento, California, 94283-0001.

14 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

15 relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1) and

16 GRANTS Plaintiff forty-five (45) days leave from the date of this Order in which to file

17 an Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s

18 Amended Complaint must be complete by itself without reference to his original pleading.

19 Defendants not named and any claim not re-alleged in the Amended Complaint will be

20 considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner

21 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the

22 original.”); Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that

23 claims dismissed with leave to amend which are not re-alleged in an amended pleading

24 may be “considered waived if not repled”).

25 If Plaintiff fails to file an Amended Complaint within the time provided, the Court

26 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state

27 a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) &

28 1915A(b)(1), and failure to prosecute in compliance with a court order requiring

1 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does

2 ||not take advantage of the opportunity to fix his complaint, a district court may convert the

3 || dismissal of the complaint into dismissal of the entire action.’’).

4 IT IS SO ORDERED.

5 Dated: February 25, 2025 BE: eg Ze. Ma

6 Hon, William Q. Hayes

7 United States District Court

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11