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Gustavo Alvarez v. Donald S. Kennedy


September 6, 2012


The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge


The pro se plaintiff is a prisoner in state custody, seeking to proceed on a civil rights complaint naming governmental defendants. His complaint was filed on August 27, 2012, with payment of the filing fee. [Docket no. 1.] For reasons stated below, the Complaint is dismissed with leave to amend.


Complaints such as Plaintiff's are subject to the court's sua sponte review under provisions of the Prison Litigation Reform Act of 1995 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996). See 28 U.S.C. § 1915A(a). The court shall dismiss such a complaint, at any time, if the court finds that it (1) is frivolous or malicious, (2) fails to state a claim on which relief may be granted, or (3) seeks monetary relief from a defendant immune from such relief. See Lopez v. Smith, 203 F.3d 1122, 1126-27 and n.7 (9th Cir. 2000)(en banc); 28 U.S.C. § 1915A(b)(prisoner complaints against government defendants).*fn1

PLRA review for failure to state a claim applies the same standard applied in reviewing a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). A Rule 12(b)(6) motion to dismiss for failure to state a claim tests the legal sufficiency of a claim for relief. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "In deciding such a motion, all material allegations of the complaint are accepted as true, as well as all reasonable inferences to be drawn from them." Id. "A Rule 12(b)(6) dismissal may be based on either a 'lack of a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare System, 534 F.3d 1116, 1121 (9th Cir. 2008)(quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). A complaint may also be dismissed for failure to state a claim if it discloses a fact or defense that necessarily defeats the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984) (citing 2A Moore's Federal Practice ¶ 12.08).

Possible failure to state a claim is reviewed under the pleading standard of Fed. R. Civ. P. 8(a)(2), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)("Iqbal"). The Rule 8 pleading standard "does not require detailed factual allegations," but does require more than merely "labels and conclusions or a formulaic recitation of the elements of a cause of action." Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). Instead, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (citations and internal quotation marks omitted). "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. This plausibility standard is not a probability requirement, but does ask for more than mere possibility. Id.

In Iqbal, the Supreme Court applied a two-pronged approach to reviewing possible failure to state a claim. Id. at 678-81. First, the reviewing court may identify statements in a complaint that are actually conclusions, rather than factual allegations, and, as such, are not entitled to a presumption of truth. Id. at 678-79. It is the statements' conclusory nature, rather than any fanciful or nonsensical nature, "that disentitles them to the presumption of truth." Id. at 681. Second, the court presumes the truth of any remaining "well-pleaded factual allegations," and determines whether these allegations and reasonable inferences from them plausibly support a claim for relief. Id. at 679-80; see also Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012); Hydrick v. Hunter, 669 F.3d 937, 940-41 (9th Cir. 2012)(discussing Iqbal and Starr).*fn2

If the court finds that a complaint should be dismissed for failure to state a claim, the court may dismiss with or without leave to amend. Lopez, 203 F.3d at 1126-30. Leave to amend should be granted if it appears that defects can be corrected, especially if the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). If, however, after careful consideration, it is clear that a complaint cannot be cured by amendment, the court may dismiss without leave to amend. Cato, 70 F.3d at 1107-11.


The Complaint names some eleven defendants, each in both official and individual capacities, and asserts fourteen claims under 42 U.S.C. § 1983 for violations of Plaintiff's federal constitutional rights. Under each claim Plaintiff asserts that various defendants violated certain of his rights by not accommodating his disabilities. As relief, Plaintiff seeks monetary damages, the reversal and expungement of the conviction and sentence on which he is now imprisoned, and release from custody.


The complaint contains multiple defects, and is subject to dismissal on several grounds. First, Plaintiff's Complaint consists entirely of conclusory statements, without the support of any actual factual allegations. Thus, Plaintiff states, again and again, that one or more defendants violated one of Plaintiff's rights by not accommodating Plaintiff's disabilities, without ever alleging (1) what disabilities Plaintiff suffers from, (2) what a specific defendant did that failed to accommodate the disability, or (3) how this failure violated the right in question. Accordingly, the Complaint wholly fails to comply with the pleading requirements under Iqbal, 556 U.S. at 677-81, as discussed above. Plaintiff may be able to correct this defect on amendment with respect to some, but not all, defendants.

The Complaint suffers from other defects which do not appear to be correctable on amendment. First, Plaintiff seeks the reversal of his conviction and sentence and his release from custody. However, insofar as Plaintiff seeks release from custody, his civil rights action is barred under Preiser v. Rodriguez, 411 U.S. 475, 483-500, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973)(person seeking release from allegedly illegal custody must do so in federal court in habeas corpus action rather than civil rights action for injunctive relief). Second, insofar as Plaintiff is seeking damages based on claims which necessarily imply the invalidity of his outstanding conviction and sentence, he cannot bring a civil rights action unless and until he first invalidates the conviction on appeal, through a habeas action, or otherwise. See Heck v. Humphrey, 512 U.S. 477, 486, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994).

Third, state officers (such as state judges and prosecutors) named in an official capacity are immune, under state sovereign immunity and the Eleventh Amendment, from damages actions in federal court. See, e.g., Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984).*fn3 Fourth, Plaintiff has named a number of judges as individual capacity defendants. Judges are absolutely immune from suit for acts performed in a judicial capacity. See Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 & n.10, 113 S. Ct. 2167, 124 L. Ed. 2d 391 (1993); Mireles v. Waco, 502 U.S. 9, 9, 112 S. Ct. 286, 116 L. Ed. 2d 9 (1991)(per curiam); Stump v. Sparkman, 435 U.S. 349, 357-60, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986)(en banc). Judicial immunity bars suit even if a judge is accused of acting in bad faith, maliciously, corruptly, erroneously, or in excess of jurisdiction. Mireles, 502 U.S. at 11-13. Fifth, Plaintiff has also named state court prosecutors as individual capacity defendants. However, prosecutors are entitled to absolute immunity from civil rights suits for damages based on their activities as legal advocates on behalf of the State in criminal proceedings. Van De Kamp v. Goldstein, U.S. , 129 S. Ct. 855, 861-62, 172 L. Ed. 2d 706 (2009)(supervising prosecutors have absolute immunity from § 1983 liability for supervision, for training, and for the management of information systems); Buckley v. Fitzsimmons, 509 U.S. 259, 272-73, 113 S. Ct. 2606, 2615, 125 L. Ed. 2d 209 (1993); Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S. Ct. 984, 995, 47 L. Ed. 2d 128 (1976).

Sixth, Plaintiff appears to have named other defendants based on their testimony in criminal proceedings against him. However, witnesses in adversarial judicial proceedings are entitled to absolute immunity from § 1983 claims arising out of their testimony, even if they commit perjury. Briscoe v. LaHue, 460 U.S. 325, 345-46, 103 S. Ct. 1108, 1121, 75 L. Ed. 2d 96 (1983); Franklin v. Terr, 201 F.3d 1098, 1099 (9th Cir. 2000). Seventh, Plaintiff appears to have named several attorneys (apparently attorneys who represented him) as defendants. Whether these are private, retained attorneys, or court-appointed public defenders they are not "persons acting under color of state law" who may be sued for civil rights violations under § 1983. Generally, private parties are not acting under color of state law. See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). Public defenders are not acting under color of law for § 1983 purposes when they are acting in their role as advocates for clients. See, e.g., Miranda v. Clark County, 279 F.3d 1102, 1107-09 (9th cir. 2002).

Accordingly, plaintiff has failed to state a § 1983 claim against these attorneys named as defendants.

In light of the defects enumerated above, it appears unlikely that Plaintiff can successfully amend his Complaint. However, under the liberal policies governing amendment of pro se pleadings, he will be given an opportunity to do so, if he can allege facts supporting a constitutional claim, which does not necessarily imply the invalidity of his conviction, against a proper defendant who is not protected by immunity.*fn4


It is therefore ORDERED as follows:

1. The Complaint is dismissed with leave to amend.

2. On or before October 5, 2012, Plaintiff may file a "First Amended Complaint" which corrects the defects discussed above and complies with the following requirements:

(a) The "First Amended Complaint" must bear the present case number "CV 12-7329-RGK(CW)."

(b) It must be complete in itself and may not incorporate by reference any part of any prior complaint.

(c) Plaintiff may not use "et al." in the caption, but must name each defendant against whom claims are stated in the First Amended Complaint. (The clerk uses the caption to make sure that defendants are correctly listed on the docket.)

(d) Plaintiff may not add new parties without the court's permission.

3. If Plaintiff files an amended complaint, the court will issue further orders as appropriate; if not, the magistrate judge will recommend that this action be dismissed, without prejudice, for failure to prosecute and/or failure to comply with court orders, as well as for the reasons stated above.

4. The clerk shall serve this Memorandum and Order on Plaintiff.

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