IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 14, 2011
JOHN LEE MORALES,
ROBERT HAMMONDS, JR., DEFENDANT.
The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, who is proceeding pro se, brings this civil action. Pending
before the court is plaintiff's complaint (Doc. 1).*fn1
The court is required to screen complaints brought by
prisoners seeking relief against a governmental entity or officer or
employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court
is also required to screen complaints brought by litigants who have
been granted leave to proceed in forma pauperis. See 28 U.S.C. §
1915(e)(2). Under these screening provisions, the court must dismiss a
complaint or portion thereof if it: (1) is frivolous or malicious; (2)
fails to state a claim upon which relief can be granted; or (3) seeks
monetary relief from a defendant who is immune from such relief. See
28 U.S.C. §§
1915(e)(2)(A), (B) and 1915A(b)(1), (2). Moreover, pursuant to Federal
Rule of Civil Procedure 12(h), this court must dismiss an action
"[w]henever it appears . . . that the court lacks jurisdiction of the
subject matter . . . ." Because plaintiff, who is not a prisoner, has
been granted leave to proceed in forma pauperis, the court will screen
the complaint pursuant to § 1915(e)(2). Pursuant to Rule 12(h), the
court will also consider as a threshold matter whether it has
Plaintiff names Robert Hammonds, Jr., Esq., as the only defendant. Plaintiff states that Mr. Hammonds has been appointed to represent him, apparently in the context of an ongoing state criminal proceeding. According to plaintiff, Mr. Hammonds has not contacted him to discuss the case. He also claims that Mr. Hammonds has failed to file critical motions in his case. Plaintiff claims that defendant's negligence has resulted in the denial of his constitutional right to effective assistance of counsel.
Principles of comity and federalism require that this court abstain and not entertain petitioner's pre-conviction challenge unless he shows that: (1) he has exhausted available state judicial remedies, and (2) "special circumstances" warrant federal intervention. See Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir.1980). Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other special circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate. See id. at 84 (citing Perez v. Ledesma, 401 U.S. 82, 85 (1971)). In the current case, plaintiff makes no such showing of "special circumstances" warranting federal intervention before the trial is held and any appeal is completed. See id. Plaintiff's remedies, if any, at this stage in the state court criminal proceedings lie in the state court (i.e., a motion for appointment of new counsel).
Based on the foregoing, the undersigned recommends that this action be dismissed.
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)(l). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).