United States District Court, N.D. California
August 13, 2004.
PATRICK KEVIN McKEE, Plaintiff,
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.
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL
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,
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.
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 filing a paid complaint, and plaintiff's
application to proceed in forma pauperis is DENIED.
IT IS SO ORDERED.
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