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Duff v. Brown

United States District Court, Ninth Circuit

June 14, 2013

DEWEY JOE DUFF, Plaintiff,
GOVERNOR EDMUND G. BROWN, et al., Defendants.


EDWARD M. CHEN, District Judge.


Plaintiff, an inmate on death row at San Quentin State Prison, filed this pro se prisoner's civil rights action under 42 U.S.C. § 1983 complaining about various problems, including the slowness, in the California process for reviewing capital convictions and sentences. The Court reviewed the complaint, identified numerous deficiencies in it, and dismissed it with leave to amend. Plaintiff then filed an "amendment to complaint" that failed to correct almost all of the deficiencies the Court discussed in the order of dismissal with leave to amend. The Court identified the deficiencies that had not been corrected, and granted further leave to amend so that Plaintiff would have one last chance to file an amended complaint that complied with all the directions in the order of dismissal with leave to amend. Docket # 15, p. 2. Plaintiff then filed an amended complaint, which is now before the Court for review.


Plaintiff was convicted in Sacramento County Superior Court and sentenced to death in March 13, 2002. Counsel was appointed for his appeal in October 2006. After obtaining thirteen extensions of time, appellate counsel filed the appellant's opening brief on July 24, 2009. (The opening brief was 200 pages.) After obtaining three extensions of time, the State filed respondent's brief on July 9, 2010. Appellant's reply brief was filed on October 29, 2010. The California Supreme Court appointed counsel for "habeas corpus/executive clemency proceedings related to the above automatic appeal" for Plaintiff on October 12, 2011. People v. Duff (Dewey Joe), Cal. S.Ct. No. S105097 (Oct. 12, 2011 docket entry).[1] The docket entry for that appointment states that any habeas petition "will presumed to be filed without substantial delay if it is filed... within 36 months of this date." Id. Habeas counsel has filed nine confidential status reports with the California Supreme Court since her appointment. A habeas petition has not yet been filed in the California Supreme Court by appointed counsel.

Plaintiff did file an unsuccessful pro per petition for writ of habeas corpus in the California Supreme Court. That petition was filed on May 16, 2011, and denied on February 20, 2013. See Duff (Dewey) on H.C., Cal. S.Ct. Case No. S193253.

Plaintiff has a federal habeas petition currently pending in the U.S. District Court for the Eastern District of California. See Duff v. Chappell, E. D. Cal. No. 12-cv-01258-LKK-KJN. He filed that petition pro se on May 9, 2012. In March 2013, counsel was appointed to represent him in that federal action. That action remains pending.

To summarize: the direct appeal is briefed and awaiting a decision; the state habeas petition has not yet been filed by counsel; and a federal habeas petition is pending in the Eastern District.


A. The Amended Complaint Fails to Comply With Court Order to Correct Deficiencies

A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

The amended complaint failed to correct most of the deficiencies about which the Court has twice warned Plaintiff. First, Plaintiff ignored the instruction to link each defendant to his legal claim(s). The amended complaint simply lists numerous defendants at the outset and makes no effort to connect any particular defendant to a claim for relief. This is no small matter, as the amended complaint has thousands of defendants, all sued in their individual and official capacities: three Governors of the State of California; all the current and three former Justices of the California Supreme Court; the State of California; "all subordinate courts within the state of California who have acted to support[, ] aid, [and] ignore the illegal processes contained within this complaint;" three California Attorneys General; "each and every member of the Attorney General[s] office;" every prosecutor in the State of California; Michael Millman of the California Appellate Project; the 500 defense attorneys certified by the California Appellate Project; "each and every officer of the court" in every California state court; and "each and every United States District Court Judge who has been presented with issues at bar contained within this Complaint, and have created orders of dismissal" or who have "fail[ed] to create any corrective forum." Docket # 16, pp. 2-3 (random capitalization omitted).

Second, Plaintiff ignored the instruction to present specific injunctive and declaratory relief requests. Most of the "relief" section of the amended complaint is a tangle of legal jargon that could not be the basis for any injunction or declaratory relief.[2] Those portions which the Court understands seek relief to which Plaintiff plainly is not entitled.

Plaintiff demands a referral of the matter to the U.S. Attorney, apparently in connection with his request for a referral pursuant to 28 U.S.C. § 2403, see Docket # 16, pp. 7 and 14, but neither subsection of that statute applies to this action. Section 2403(a) provides for a referral to the U.S. Attorney General when there is not a federal governmental party and "wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question." 28 U.S.C. § 2403(a). That subsection does not apply because the amended complaint does not call into question the constitutionality of any Act of Congress. Section 2403(b) provides for a referral to a state's attorney general when there is no state governmental party to the action and "wherein the constitutionality of any statute of that State affecting the public interest is drawn in question." 28 U.S.C. § 2403(b). ...

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