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Rotar v. Skaggs

December 23, 2008

VIOREL ROTAR, PLAINTIFF,
v.
COLETTE SKAGGS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows, United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff, proceeding in this action pro se, has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 72-302(21), pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff has submitted an affidavit making the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted.

The determination that plaintiff may proceed in forma pauperis does not complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against an immune defendant.

A claim is frivolous if it has no arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984); Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989).

A complaint, or portion thereof, fails to state a claim if it appears beyond doubt there is no set of supporting facts entitling plaintiff to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true its allegations, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe it in the light most favorable to plaintiff, and resolve all doubts in plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 ( 1969).

Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230.

Plaintiff has filed five previous actions in this court, three of which were dismissed on the merits based on many of the same claims against many of the same defendants sued in this action. To the extent the same law applies here, these previously adjudicated claims and defendants will not be re-litigated. The court will merely repeat the analysis already provided to plaintiff in the previous cases, and discuss it where applicable to newly named defendants.

In this latest version, plaintiff alleges that he and his wife worked for defendants Kabays under slave conditions at a residential care facility, that the Kabays falsely accused them of elder abuse there, and that criminal charges by other defendants were wrongfully brought against plaintiff. Plaintiff sues most of the defendants for their actions in both the previous criminal case and in later civil cases brought by plaintiff stemming from the original prosecution.

Plaintiff seeks monetary damages. Plaintiff has brought similar claims against the following defendants previously in this court: Colette Skaggs (Civ.S.06-970, Civ.S. 03-552), Mike Sherlock (Civ.S. 07-0044), James Garbolino (Civ.S. 03-552), Richard Couzens (Civ.S. 06-970), Gregory Hollows (Civ.S. 07-0044)*fn1, Morrison England (Civ.S. 07-0044), Atilla Kabay (Civ.S. 07-0044), Tunde Kabay (Civ.S. 07-0044), Ekaterina Kabay (Civ.S. 07-0044), Sigismond Kabay (Civ.S. 07-0044).

The significant difference between these prior cases and the instant one is that after some of these cases were dismissed, plaintiff alleges that his conviction was reversed on appeal and the case against him later dismissed. Compl. at 11; Ex. 13 at 6, 10.

Insofar as defendants may have been involved in plaintiff's criminal prosecution, it now appears that unlike the previous cases brought by plaintiff and dismissed by the court, this case might no longer be barred by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 760 (1971) or Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994). According to plaintiff, he is no longer subject to pending criminal proceedings, and his conviction has been overturned. Younger abstention doctrine applies when the following factors are present: "(1) ongoing state judicial proceeding;*fn2 (2) implication of an important state interest in the proceeding; and (3) an adequate opportunity to raise federal questions in the proceedings." World Famous Drinking Emporium v. City of Tempe, 820 F.2d 1079, 1082 (9th Cir. 1987). It appears that there are no longer ongoing state judicial proceedings.

Heck determined that a civil rights action which implicates the validity of a criminal conviction cannot be brought until the conviction or sentence has been reversed on direct appeal. Heck applies with equal force to bar civil rights claims which implicate the validity of pending criminal prosecutions. See Harvey v. Waldron, 210 F.3d 1008 (9th Cir.2000). Now that plaintiff's conviction has apparently been overturned, he may proceed with some of his claims unless otherwise precluded.

There are a number of other defects in the complaint, however. Named as defendants are eight judges: Garbolino, Gadis, Couzens, Kearney, ...


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