The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By order filed August 9, 2010, plaintiff's complaint was dismissed with leave to file an amended complaint. Plaintiff has filed an amended complaint.
As plaintiff was previously informed, 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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 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 where 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); Franklin, 745 F.2d at 1227.
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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, No. 07-1015, 2009 WL 1361536 at *12 (May 18, 2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843 (1969).
Plaintiff names as defendants: a court stenographer named Peggy Bakarich; Hilda Scheib, his appellate attorney; and the Director of CDCR.*fn1 Amended Complaint (AC), pp. 1-3. He alleges that defendant Bakarich failed to inform the trial court and his trial attorney [in Sacramento County] that court records were incomplete and also misled the Third Appellate Court by certifying that the trial records were complete when the oral pronouncement of the twenty-five-year-to-life sentence was not a part of the record. Id. at 3. Plaintiff includes a copy of an unsigned declaration with Peggy Bakarich's name stating that the conclusion of a hearing on the judgment and sentence on October 14, 1999, was reported but was unable to be transcribed past page 436, due a faulty diskette in the stenomachine. Id. at 18. Plaintiff alleges that he has had to endure 12 years of an illegal sentence based on the lack of transcripts. Id. at 4. Plaintiff appears to believe that the lack of a portion of the sentencing transcript signifies that no judgment/sentencing took place. Id. Alternatively, he may be claiming that no sentencing took place and because there is no transcript record, he has been subjected to an illegal sentence for years now. Id. Plaintiff accuses defendant Bakarich of having failed to inform the trial court at the time of this mistake/omission and of having failed to provide a declaration until all the briefing was submitted in his direct appeal, averring that the belated notice constituted a criminal act. Id. at 5.
Plaintiff alleges that he walked out an open door when he was sent to Yolo County on a child custody matter on October 22, 1999, some eight days after an allegedly fraudulent abstract of judgment from Sacramento County apparently shows he had been sentenced there (in Sacramento County Superior Court) to a prison term of 25 years to life. AC, p. 4. Plaintiff was picked up by Sacramento police on October 24, 1999, who released him again to the custody of the Yolo County sheriff, whereupon he was thrown into solitary confinement and forgotten for two years. Id.
Plaintiff claims that his appellate counsel, defendant Scheib, appointed on July 17, 2000, failed to contact him in Yolo County Jail before filing an opening brief. AC, p. 5. He alleges that on August 13, 2001, she filed a supplemental brief, once she was informed by petitioner that Sacramento County had forgotten to pronounce a sentence. Id. He accuses her of having filed the opening brief without having reviewed the trial records that would have revealed this omission, and he contends defendant Scheib told him defendant Bakarich was filing a declaration of absent records with the Third District Appellate Court, which did not occur. Id. at 5-6.
Plaintiff alleges, in addition, that CDCR (and presumably the defendant director) has known since 2001 that plaintiff is being illegally confined. AC, p. 7. He notes that the CDCR legal processing unit wrote to the Yolo County Superior Court [concerning the six-year sentence he subsequently received from that court] from which CDCR received no response.
AC, p. 7. In a copy of a letter dated August 27, 2001, which plaintiff includes as an exhibit, Yolo County Superior Court Judge William S. Lebov is informed by a CDCR correctional case records analyst that the abstract of judgment and minute order fails to reflect the relationship of the Yolo County Court sentence and that of the Sacramento County Court, asking for a certified copy of any minute order or modified abstract of judgment. Id. at 23. Within the letter, the case records analyst makes a reference "that an illegal sentence exists...." Id. A copy of another letter from the same analyst, dated February 26, 2002, directed to the Yolo County District Attorney identifies "an error in the sentence imposed or a discrepancy in the legal documents," and states that letters were sent on August 27, 2001 and on November 20, 2001 to the Court about the problem to which no response had been received. Id. at 24.
In a copy of another letter, dated much later, March 24, 2009 (stamped received March 26, 2009), a different case records analyst signed a letter directed to the Sacramento County Superior Court criminal clerk, indicating that, inter alia, the October 14, 1999, "transcript of proceedings at time of sentencing" was not included in the CDCR files for plaintiff. AC, p.
25. Plaintiff also includes a copy of an abstract of the Yolo County judgment indicating plaintiff was convicted on March 2, 2001, with the six-year sentence for his escape from jail pronounced on March 30, 2001. Id. at 31. Plaintiff also includes at least a partial copy of a sheet showing his criminal history, wherein it is noted the life term he is serving began on April 6, 2001. Id. at 32. Plaintiff raises the question of how he can have begun serving a sentence supposedly imposed on October 14, 1999, almost eighteen months later, such that he contends that CDCR's intake of him was illegal and fraudulent and without the necessary clerk of court's certification. Id., at 33. Plaintiff asks that the court order an investigation into the documents that support his confinement; issue an order for the Sacramento County Superior Court to issue the transcript of the oral pronouncement of his sentence; make an order for CDCR to provide plaintiff with all his legal records, including a receipt from the "sheriff department" for delivery of plaintiff to prison, in compliance with state and prison regulation/statute and for CDCR to be enjoined from continuing "there [sic] cruel confinement"; plaintiff also seeks punitive damages for his "illegal confinement." Id. at 3, 9. Plaintiff's request that the court issue an injunction for his confinement to be put to an end belies his assertion that he is not asking the court to "issue any form of release from confinement." Id. at 8.
The court has painstakingly laid out the claims of this putative action and finds the defects of plaintiff's claims are such that this action should be dismissed with prejudice for the following reasons. Plaintiff's apparent ambivalence on the question of whether or not he seeks release from his current confinement in this case appears to stem from the court's admonition in the August 9, 2010, screening order that he may not proceed in a civil rights action if the relief he ...