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Broussard v. Charvat

United States District Court, N.D. California

November 24, 2014

CURLEY JOHN BROUSSARD, JR., Plaintiff,
v.
RICHARD F. CHARVAT, Superior Court Judge; et al., Defendants.

ORDER OF DISMISSAL

LUCY H. KOH, District Judge.

Plaintiff, a California state prisoner proceeding prose, filed a civil rights complaint pursuant to 42 U.S.C. ยง 1983. On December 6, 2013, the court dismissed this action for failure to file a timely and completed application for leave to proceed in forma pauperis ("IFP"). On December 23, 2013, plaintiff filed a notice of appeal with the Ninth Circuit. On January 6, 2014, plaintiff filed a motion for reconsideration of this court's December 6, 2013 judgment. On April 14, 2014, this court dismissed plaintiffs motion because plaintiff had a pending appeal. On August 25, 2014, the Ninth Circuit issued a limited remand for this court to consider whether plaintiffs motion for reconsideration was one of the motions enumerated in Federal Rule of Appellate Procedure 4(a)(4). The following day, on August 26, 2014, the court granted plaintiffs motion for reconsideration, vacated the judgment, re-opened this action, and dismissed plaintiffs complaint with leave to amend. The court directed plaintiff to file an amended complaint within thirty days or face dismissal of this action. To date, although plaintiff has filed a variety of pleadings, plaintiff has not filed an amended complaint. Thus, this action is DISMISSED without prejudice.

In addition, none of these pleadings can be liberally construed as an amended complaint that would allow this action to proceed because, as explained below, none of the pleadings cured the deficiencies as pointed out in the court's August 26, 2014 order.

On September 17, 2014, plaintiff filed an "objection" to the court's order granting the motion for reconsideration. (Docket No. 31.) In the objection, plaintiff set forth claims regarding his 1983 convictions sustained in Los Angeles Superior Court. Specifically, plaintiff alleged that the search and seizure warrant was invalid ( id. at 3, 6-7), the prosecution put on perjured testimony ( id. at 3), the public defender had a conflict of interest ( id. at 4), plaintiffs conviction was invalid ( id. at 5), the evidence admitted at trial was obtained illegally ( id. at 7-8), plaintiff was subjected to double jeopardy ( id. at 10), and the AEDPA was unlawful ( id. at 10). Not only do these allegations fail to state a cognizable civil rights claim, but the court previously notified plaintiff that he could not challenge his criminal conviction in a Section 1983 action without first demonstrating that the conviction or sentence has been invalidated. See Heck v. Humphrey, 512 U.S. 477 (1994). He has not done so.

The court notes that attached to plaintiffs "objection" is a motion for leave to file an amended civil complaint. In that "motion, " plaintiff requests that defendant "Ralph M. Diaz" be dismissed, [1] and "Jeffrey Beard, " Secretary of the CDCR, be added as a defendant. Even if the court construed plaintiffs motion as an amended complaint, it would be dismissed because it did not cure any of the deficiencies as explained in the court's previous order. Specifically, plaintiff does not link Jeffrey Beard to any action or inaction that would demonstrate that Jeffrey Beard is liable for any wrongdoing.

Plaintiff also filed a "motion for order to appear in court." (Docket No. 32.) In it, plaintiff alleges that the CDCR and the California Correctional Peace Officers Association are engaging in unconstitutional conduct. Plaintiffs motion is difficult to understand. He claims that he has seen custody officials "staging incidents" and that custody officials plotted against plaintiff to keep him in administrative segregation. Plaintiff also complains about being harassed by prison officials in Kern Valley State Prison and discusses a variety of complaints that he has about the conditions of his confinement. However, plaintiff fails to specifically state what happened, when it happened, what each defendant did, and how those actions or inactions rise to the level of a federal constitutional violation, as the court previously directed him to do.[2]

On October 3, 2014, plaintiff filed a "motion for review" and cited to Federal Rules of Civil Procedure 59(e) and 60(b). (Docket No. 35.) A motion to alter or amend judgment under Rule 59 must be made no later than twenty-eight days after entry of judgment. See Fed.R.Civ.P. 59(e) (effective Dec. 1, 2009). Similarly, Rule 60(b) lists six grounds for relief from a judgment. Plaintiffs case has not yet resulted in any judgment. Thus, both Rules 59(e) and 60(b) are inapplicable. In addition, plaintiffs motion for review includes allegations that his 1983 convictions were obtained because the prosecutor manipulated the evidence, the warrant was invalid, and the evidence obtained from the warrant should not have been admitted at trial. Plaintiff further argues that in a separate criminal conviction from Kings County, plaintiff was subjected to double jeopardy and a racial slur by one of the jurors. Again, plaintiff was previously warned that plaintiff could not challenge his criminal conviction in a Section 1983 action without first demonstrating that the conviction or sentence has been invalidated. See Heck v. Humphrey, 512 U.S. 477 (1994).[3] It is possible that plaintiff may have valid federal civil rights claims concerning an alleged unconstitutional conviction obtained as a result of juror bias, for example. However, because plaintiffs allegations appear to implicate the validity of plaintiffs state court convictions and plaintiff has not provided proof that the convictions have been invalidated or reversed, these claims are barred by Heck.

Thus, the instant action is DISMISSED without prejudice. The clerk shall terminate all pending motions, enter judgment and close the file.

IT IS SO ORDERED.


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