United States District Court, E.D. California
KEVIN E. KING, Plaintiff,
JUDGE RICHARD K. SUEYOSHI, et al. Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
seeks leave to proceed in forma pauperis pursuant to
28 U.S.C. 1915. His declaration makes the showing required
by 28 U.S.C. §1915(a)(1) and (2). See ECF No.
2. Accordingly, the request to proceed in forma
pauperis is granted. 28 U.S.C. § 1915(a).
that plaintiff may proceed in forma pauperis does
not complete the required inquiry. Pursuant to §
1915(e)(2), the court must dismiss the case at any time if it
determines the allegation of poverty is untrue, or if the
action is frivolous or malicious, fails to state a claim on
which relief may be granted, or seeks monetary relief against
an immune defendant. As discussed below, plaintiff’s
complaint fails to state a claim and must therefore be
pro se pleadings are liberally construed, see Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), a complaint, or
portion thereof, should be dismissed for failure to state a
claim if it fails to set forth “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554,
562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41
(1957)); see also Fed. R. Civ. P. 12(b)(6).
“[A] plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to
relief’ requires more than labels and conclusions, and
a formulaic recitation of a cause of action’s elements
will not do. Factual allegations must be enough to raise a
right to relief above the speculative level on the assumption
that all of the complaint’s allegations are
true.” Id. (citations omitted). Dismissal is
appropriate based either on the lack of cognizable legal
theories or the lack of pleading sufficient facts to support
cognizable legal theories. Balistreri v. Pacifica Police
Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S.
738, 740 (1976), construe the pleading in the light most
favorable to the plaintiff, and resolve all doubts in the
plaintiff’s favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969). A pro se plaintiff must satisfy the
pleading requirements of Rule 8(a) of the Federal Rules of
Civil Procedure. Rule 8(a)(2) requires a complaint to include
“a short and plain statement of the claim showing that
the pleader is entitled to relief, in order to give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Twombly, 550 U.S. at 555
(citing Conley v. Gibson, 355 U.S. 41 (1957)).
a federal court is a court of limited jurisdiction, and may
adjudicate only those cases authorized by the Constitution
and by Congress. Kokkonen v. Guardian Life Ins. Co.,
511 U.S. 375, 377 (1994). The basic federal jurisdiction
statutes, 28 U.S.C. §§ 1331 & 1332, confer
“federal question” and “diversity”
jurisdiction, respectively. Federal question jurisdiction
requires that the complaint (1) arise under a federal law or
the U.S. Constitution, (2) allege a “case or
controversy” within the meaning of Article III, §
2 of the U.S. Constitution, or (3) be authorized by a federal
statute that both regulates a specific subject matter and
confers federal jurisdiction. Baker v. Carr, 369
U.S. 186, 198 (1962). To invoke the court’s diversity
jurisdiction, a plaintiff must specifically allege the
diverse citizenship of all parties, and that the matter in
controversy exceeds $75, 000. 28 U.S.C. § 1332(a);
Bautista v. Pan American World Airlines, Inc., 828
F.2d 546, 552 (9th Cir. 1987). A case presumably lies outside
the jurisdiction of the federal courts unless demonstrated
otherwise. Kokkonen, 511 U.S. at 376-78. Lack of
subject matter jurisdiction may be raised at any time by
either party or by the court. Attorneys Trust v.
Videotape Computer Products, Inc., 93 F.3d 593, 594-95
(9th Cir. 1996).
alleges that in January 2014, he entered into a plea
agreement for a 16 month sentence for petty theft with prior
convictions. Id. at 2. After entering his plea, he
was released on his own recognizance and ordered to appear
back in court on February 6, 2014 for sentencing.
Id. at 3-4, 30. He was also admonished that if he
committed a new crime prior to the sentencing hearing, the
court would not be bound by the terms of the plea agreement.
Id. at 27. One week before the sentencing hearing,
plaintiff was involved in a family dispute. Id. at
4. The police were called and plaintiff was arrested for
being under the influence of methamphetamines. Id.
at 4, 32.
light of plaintiff’s arrest for the drug offense,
plaintiff was sentenced to three years, rather than 16
months, in prison. Id. at 4, 35. Plaintiff claims
that the state court judge and the district attorney violated
his constitutional rights by giving him the maximum sentence
of 3 years in prison. Id. Plaintiff appealed his
sentence, which was denied. Id. at 3. He claims that
his appointed public defender, Robert Martin, provided
ineffective assistance of counsel by failing to contest his
illegal sentence. Id. at 3.
to California’s Proposition 47, plaintiff’s
sentence was subsequently reduced to a misdemeanor and his
sentence modified to one year in county jail, with one year
of parole upon release. Id. at 5, 41. Plaintiff
claims, however, that the imposition of one year of parole
was unlawful. Id. at 5.
complaint purports to allege claims under 42 U.S.C. §
1983 against Judge Richard K. Sueyoshi, the sentencing judge;
Assistant Deputy District Attorney Brad Ng; Public Defender
Robert Martin Jr.; Parole Agent J. Garcia; Parole Supervisor
Marvin Speed; and Jeffrey Beard, the Secretary of the
California Department of Corrections and Rehabilitation. The
complaint fails to state a claim against these defendants for
state prosecutors are entitled to absolute prosecutorial
immunity for acts taken in their official capacity. See
Kalina v. Fletcher, 522 U.S. 118, 123-24 (1997);
Buckley v. Fitzsimmons, 509 U.S. 259, 269-70 (1993);
Imbler v. Pachtman, 424 U.S. 409, 427, 430-31 (1976)
(holding that prosecutors are immune from civil suits for
damages under § 1983 for initiating prosecutions and
presenting cases). Plaintiff’s claim(s) against Deputy
District Attorney Brad Ng relate to actions taken in Mr.
Ng’s official capacity in relation to plaintiff’s
sentencing. Accordingly, this defendant is immune from suit.
are also absolutely immune from damage for judicial acts
taken within the jurisdiction of their courts . . . . A judge
loses absolute immunity only when [the judge] acts in the
clear absence of all jurisdiction or performs an act that is
not judicial in nature.” Schucker v. Rockwood,
846 F.2d 1202, 1204 (9th Cir. 1988) (per curiam). As
plaintiff’s claim(s) against Judge Sueyoshi relate to
sentencing, an act that is judicial in nature, he is entitled
to absolute immunity.
addition, plaintiff’s court-appointed attorney,
defendant Robert Martin, cannot be sued under § 1983.
See Polk County v. Dodson, 454 U.S. 312, 318-19
(1981) (public defenders do not act under color of state law
for purposes of § 1983 when performing a lawyer’s
traditional functions). And any potential claims for legal
malpractice do not come within the jurisdiction of the
federal courts. Franklin v. Oregon, 662 F.2d 1337,
1344 (9th Cir.1981).
defendants Garcia, Speed, and Beard, the complaint does not
include any allegations indicating that these defendants were
personally involved in the violation of plaintiff’s
constitutional rights. An individual defendant is not liable
on a civil rights claim unless the facts establish the
defendant’s personal involvement in the constitutional
deprivation or a causal connection between the
defendant’s wrongful conduct and the alleged
constitutional deprivation. See Hansen v. Black, 885
F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588
F.2d 740, 743-44 (9th Cir. 1978). Plaintiff may not sue any
official on the theory that the official is liable for the
unconstitutional conduct of his or her subordinates.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). He must
identify the particular person or persons who violated his
rights. He must also plead ...