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Mousa v. Harris

United States District Court, Ninth Circuit

November 26, 2013

SADAT F. MOUSA, Plaintiff,
v.
KAMALA D. HARRIS, et al., Defendants.

ORDER GRANTING MOTIONS TO DISMISS, VACATING HEARING, AND DENYING MOTION TO CONTINUE HEARING AS MOOT Re: ECF Nos. 23, 25, 26, 51

JON S. TIGAR, District Judge.

In this action for claims under 42 U.S.C. § 1983, Defendants the City and County of San Francisco ("the City"), the State of California, Kamala Harris, and Murray Zisholz move to dismiss each of the claims that Plaintiff Mousa has asserted against them. Mousa, who is appearing pro se, opposes the motions. For the reasons set forth below, the motions are GRANTED.

I. BACKGROUND

A. The Parties and Claims

Plaintiff Sadat Mousa brings this action against Murray Zisholz, the City and County of San Francisco, the State of California, and Kamala Harris for claims arising out of his conviction and subsequent incarceration in connection with two criminal charges. The first charge, a felony, was based on a death threat he made to his brother. The second charge, a misdemeanor, arose out of harassing telephone calls that Mousa allegedly made in 2009. Compl. ¶ 7.

Prior to and during his trial, Mousa was represented by Defendant Murray Zisholz, a court-appointed attorney. Mousa alleges that he repeatedly asked the state court to allow him to substitute Zisholz with another attorney named George Walker, but the state court refused to do so. Id . ¶ 8, 35-37, 41.

Mousa was convicted and sentenced in May 2010. Id . ¶ 49. He spent several months in the San Quentin State Prison for his felony conviction and then was transferred to the jail in San Francisco to serve another year in connection the misdemeanor charge. Id . ¶¶ 50-53. Mousa spent a total of four years in custody. Id . ¶ 8.

The gravamen of the complaint is that Defendants deprived Mousa of "all of his constitutional rights, " including (1) the right to hire the attorney of his choice to represent him in his trial; (2) the right to have a speedy trial; (3) the right to subpoena witnesses; and (4) the right to be present in court during his trial. Id . ¶ 8. Mousa also alleges that the state court's refusal to allow him to hire his own attorney ultimately resulted in his wrongful conviction, as Zisholz allegedly made several mistakes in the course of his representation of Mousa. Finally, Mousa avers that he suffered food poisoning during custody and that jail staff put psychoactive ingredients in his food to make him appear mentally ill. Id . ¶¶ 8, 53.

Mousa brings nine claims against Defendants: (1) a claim under 42 U.S.C. § 1983 for violations of his rights under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments on the grounds of "malicious prosecution, " the denial of his right to confront his accusers, and a failure to presume him innocent during his trial; (2) a claim under § 1983 for violations of his due process rights under the Fifth, Sixth, and Fourteenth Amendments in connection with his prosecution and removal from the courtroom during trial; (3) a claim under § 1983 for violations of his due process rights under the Fourteenth Amendment in connection with his confinement during trial; (4) a claim under § 1983 for violations of his rights under the Fourth Amendment in connection with searches that were conducted on his person while he was in custody; (5) a claim under California Civil Code Section 52.1 based on the state court's refusal to allow Mousa to hire the counsel of his choice during trial; (6) a claim for false imprisonment following a conviction of "PC 422 and PC 308"; (7) a claim for intentional infliction of emotional distress; (8) a claim for negligent infliction of emotional distress; and (9) "declaratory and injunctive relief."

Mousa seeks compensatory and punitive damages, attorney's fees and costs, medical expenses, and the reversal of his conviction in connection with his claims.

B. Procedural History

Defendants filed the motions to dismiss at issue before this action was reassigned. Mousa failed to file timely oppositions, and the Court issued an order to show cause why counsel for Mousa should not be sanctioned for failing to oppose the motions or to file an amended complaint. ECF No. 33. Counsel for Mousa then moved to withdraw as counsel of record on the ground that Mousa could not afford to retain him. ECF No. 36. The Court granted that motion during a hearing on the order to show cause and permitted Mousa to proceed pro se. See ECF No. 37. The action was subsequently reassigned. The Court continued the hearing on the motions to allow Mousa time to file a response and encouraged Mousa to seek the assistance of the Legal Help Center in prosecuting this action. ECF No. 42. Mousa filed timely oppositions to the motions. ECF No. 44, 45, 46.

C. Jurisdiction

The Court has jurisdiction over this action under 28 U.S.C. ...


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