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August 13, 2004.

OFFICER RANDALL BRANDT, in his private capacity; DEPUTY DISTRICT ATTORNEY MICHAEL WHITE, in his private capacity; DEPUTY DISTRICT ATTORNEY ERIN LOBACK, in her private capacity; THE HON. PEGGY HORA, in her private capacity; and THE HON. RONNI B. MacLAREN, in her private capacity. Defendant.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge


Plaintiff's application to proceed in forma pauperis has been denied and his complaint has been dismissed without leave to amend but without prejudice to filing a paid complaint. Judgment is entered accordingly.




  Plaintiff Patrick Kevin McKee seeks leave to bring suit in forma pauperis against a police officer, two deputy district attorneys and two California state judges, alleging fraud, perjury of oath of office, falsification, practicing law without a license, extortion, criminal conspiracy, and violation of his constitutional rights to due process and equal protection under law. In addition to seeking money damages, plaintiff asks this Court to declare that his DUI conviction by the Alameda County Superior Court is void for lack of jurisdiction.


  A federal court must undertake a preliminary screening of any case brought in forma pauperis against a governmental entity, or an officer or employee of a governmental entity, to determine whether the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C.S. § 1915(e)(2)(B). For the reasons set out below, the Court finds that this action meets the second and third conditions for dismissal.

  In the first place, the Complaint, Affidavits and Exhibits contain only factually unsupported allegations of misconduct together with legal assertions, some of which are wrongly characterized as "facts." See, e.g., Compl., Ex. 3, Notice of Sworn Mot. to Dismiss and Mot. to Dismiss for Want of Subject-Matter Jurisdiction ¶¶ 5-50. Plaintiff has not provided this Court with any information concerning the actions of defendants or other facts or circumstances that would enable the Court to understand or evaluate the factual basis of his claims. Because plaintiff has alleged no facts in support of his allegations, he has failed to state a claim.

  Secondly, to the extent that plaintiff seeks to bring a civil rights action for money damages resulting from a wrongful conviction, his suit is premature. The case of Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994), held that a plaintiff cannot bring a civil rights action for damages for a wrongful conviction unless that conviction already has been determined to be wrongful. See id., 512 U.S. at 486-87, 114 S. Ct. at 2372-73. A conviction may be determined to be wrongful by, for example, being reversed on appeal or being set aside when a state or federal court issues a writ of habeas corpus. See id. The Heck rule also prevents a person from bringing an action that — even if it does not directly challenge the conviction — would imply that the conviction was invalid. The practical importance of this rule is that plaintiffs cannot attack their convictions in a civil rights action for damages; the conviction must have been successfully attacked, on constitutional or other grounds, before the civil rights action for damages is filed. Thus Heck bars McKee's action because his claim of violation of his constitutional rights implicates the validity of the conviction he suffered. No cause of action accrues unless and until the conviction is set aside. Plaintiff may not challenge that conviction by bringing a habeas corpus petition in federal court before he has exhausted his state judicial remedies by appealing to the highest available state court. Granberry v. Greer, 481 U.S. 129, 134, 107 S. Ct. 1671, 1674-75 (1987).

  Thirdly, the essence of plaintiff's constitutional challenge of his DUI conviction is that the State of California has no authority under the United States Constitution to regulate the conduct of private citizens driving motor vehicles on the public highway unless they are engaged in interstate commerce. See Compl., Ex. 6, Mem. of Law re: What Is The California Department Of Motor Vehicles And Who Is Subject To Its Jurisdiction. Plaintiff's assertion is incorrect. The State may impose such regulations by the legitimate exercise of its police power, which "is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. . . . The State may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests." Lawton v. Steele, 152 U.S. 133, 136, 14 S. Ct. 499, 500-01 (1894) (internal citations omitted). It has long been established law that, under its police power, "a State may rightfully prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles — those moving in interstate commerce as well as others." Hendrick v. Maryland, 235 U.S. 610, 622, 35 S. Ct. 140, 142 (1915); cf. Kane v. New Jersey, 242 U.S. 160, 168, 37 S. Ct. 30, 32-33 (1916).

  Finally, plaintiff's allegations against defendants are all founded on the false premise that the State's traffic regulations are unconstitutional. Even if this premise were granted, or allowed to be in dispute, plaintiff's action against the named defendants would, nonetheless, fail. Under U.S.C. § 1983, judges acting within, or not clearly outside, the scope of their judicial function have absolute individual immunity from suit. Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099 (1978). The defense of absolute immunity also extends to state prosecutors in the exercise of their prosecutorial function. Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984 (1976). Police officers and other state officials, including judges acting non-judicially and prosecutors acting in a non-prosecutorial capacity, are entitled to qualified immunity, which shields them "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727 (1982). The defense of qualified immunity "`provides ample protection to all but the plainly incompetent or those who knowingly violate the law.'" Burns v. Reed, 500 U.S. 478, 494-95, 111 S. Ct. 1934 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096 (1986)). "Therefore, regardless of whether the constitutional violation occurred, the [official] should prevail if the right asserted by the plaintiff was not `clearly established' or the [official] could have reasonably believed that his particular conduct was lawful." Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991).

  Thus, in deciding whether an official is entitled to qualified immunity, a court must ask first, whether the law governing the official's conduct was clearly established at the time of that conduct and second, whether a reasonable state official could, under that law, have believed his conduct to be lawful. Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002). In this case, the constitutionality of the law complained of was established beyond question. Defendants thus had more than a sufficient reason to believe their actions to be lawful. This would be so even if the law complained of were to be overturned as the result of a subsequent challenge.

  For these reasons, the Court finds that plaintiff has failed to state a claim on which relief can be granted and, moreover, that defendants have immunity from his suit. On this occasion, the Court will not reach the question whether the suit is frivolous and/or malicious. The Complaint is, accordingly, DISMISSED without prejudice to ...

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