(PC) Proffitt v. Superior Court of Cal. Shasta County

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JERRY PROFFITT, No. 2:19-cv-1435 KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS SUPERIOR COURT OF CALIFORNIA, SHASTA COUNTY, et al., Defendants.

18 Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. He filed a signed amended complaint on August 9, 2019. He also requests leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

22 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).

23 Accordingly, the request to proceed in forma pauperis is granted.

24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account.

2 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

5 The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

10 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 19 1227.

20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

24 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted).

2 In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

6 Plaintiff reiterates allegations concerning his criminal trial in Shasta County which have been previously dismissed by other judges in this district. The court’s own records reveal that on March 2, 2009, plaintiff previously initiated an action by filing a document setting forth similar allegations concerning his criminal trial in Shasta County. Proffitt v. People of Shasta County, No. CIV S-09-0610 GGH (E.D. Cal.)1 Plaintiff was convicted in Shasta County Superior Court in 2001. Proffitt v. Campbell, 2:06-cv-2143 GEB GGH (E.D. Cal.) (ECF No. 1 at 1).2 12 In addition, court records reveal that on March 25, 2009, plaintiff filed another action with the same allegations. Proffitt v. Shasta County Superior Court, No. CIV S-09-0821 DAD (E.D.

14 Cal.). In that case, the court dismissed the action as being duplicative and advised plaintiff to use the file number, CIV S-09-0610 GGH, for all future filings. On April 15, 2009, plaintiff filed a third action with the same allegations that were also dismissed as duplicative. Proffitt v. People of Shasta County, No. CIV S-09-1015 GGH (E.D. Cal.). Due to the duplicative nature of the present action, the court will recommend that the complaint in this action be dismissed.

19 Moreover, plaintiff’s request for money damages, based on his claim that he was wrongfully convicted, is barred. In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the United States Supreme Court held that to recover damages for “harm caused by actions whose unlawfulness would render a conviction or sentence invalid,” a § 1983 plaintiff must prove that the conviction or sentence was reversed, expunged, or otherwise invalidated. The favorable- termination rule laid out in Heck preserves the rule that claims which, if successful, would A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).

2 In 2006, plaintiff filed a petition for writ of habeas corpus challenging his 2001 conviction; the petition was dismissed as barred by the statute of limitations. Id. | necessarily imply the invalidity of a conviction or sentence, must be brought by way of petition | for writ of habeas corpus, after exhausting appropriate avenues for relief. Muhammad v. Close, | 540 U.S. 749, 750-751 (2004).

4 Thus, plaintiff may not seek money damages on the basis of an allegedly unlawful | conviction until such time as his conviction has been reversed, expunged, or otherwise | invalidated.

7 In accordance with the above, IT IS HEREBY ORDERED that: 8 1. Plaintiff's request for leave to proceed in forma pauperis is granted.

9 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff | is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. }| § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the | Director of the California Department of Corrections and Rehabilitation filed concurrently | herewith.

14 3. The Clerk of the Court is directed to randomly assign a United States District Judge to | this action.

16 Further, IT IS RECOMMENDED that this action be dismissed without prejudice. See | Fed. R. Civ. P. 41(b).

18 These findings and recommendations are submitted to the United States District Judge | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days | after being served with these findings and recommendations, plaintiff may file written objections | with the court and serve a copy on all parties. Such a document should be captioned | “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that | failure to file objections within the specified time may waive the right to appeal the District | Court’s order. Martinez v. YIst, 951 F.2d 1153 (th Cir. 1991).

25 | Dated: August 23, 2019 Foci) Aharon 7 KENDALL J. NE /profl435.56 UNITED STATES MAGISTRATE JUDGE