United States District Court, E.D. California
Joseph Melger, Plaintiff, Pro Se.
KENDALL J. NEWMAN, Magistrate Judge.
is a state prisoner, proceeding without counsel. Plaintiff
seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff has
submitted a complete request for leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. This proceeding was
referred to this court by Local Rule 302 pursuant to 28
U.S.C. § 636(b)(1). Plaintiff consented to proceed before the
undersigned for all purposes. See 28 U.S.C. § 636(c).
submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). However, the court will not assess a filing
fee at this time. Instead, the undersigned summarily
dismisses the complaint.
24, 2016, plaintiff filed a first amended complaint as of
right under Rule 15 of the Federal Rules of Civil Procedure.
(ECF No. 15.) On July 12, 2016, plaintiff filed a motion to
amend, accompanied by his second amended complaint. (ECF Nos.
23, 24.) Plaintiff seeks to clarify the nature of his claims,
asserting that he is not challenging his underlying
conviction, that the district attorney incorrectly charged
him, or that his current prison sentence is too long. (ECF
No. 23; 24 at 4.) Therefore, plaintiff's motion to amend
is granted, and the court now screens plaintiff's second
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a). The
court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally "frivolous
or malicious, " that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir. 1984). The court may, therefore, dismiss a
claim as frivolous when it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989), superseded by statute as stated in Lopez v.
Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("[A]
judge may dismiss [in forma pauperis] claims which are based
on indisputably meritless legal theories or whose factual
contentions are clearly baseless."); Franklin,
745 F.2d at 1227.
8(a)(2) of the Federal Rules of Civil Procedure
"requires only 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.'" Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
In order to survive dismissal for failure to state a claim, a
complaint must contain more than "a formulaic recitation
of the elements of a cause of action;" it must contain
factual allegations sufficient "to raise a right to
relief above the speculative level." Id. at
555. However, "[s]pecific facts are not necessary; the
statement [of facts] need only give the defendant fair notice
of what the... claim is and the grounds upon which it
rests.'" Erickson v. Pardus, 551 U.S. 89,
93 (2007) (quoting Bell Atlantic, 550 U.S. at 555,
citations and internal quotations marks omitted). In
reviewing a complaint under this standard, the court must
accept as true the allegations of the complaint in question,
Erickson, 551 U.S. at 93, and construe the pleading
in the light most favorable to the plaintiff. Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974), overruled on other
grounds, Davis v. Scherer, 468 U.S. 183 (1984).
plaintiff alleges that the District Attorney's office of
Placer County is liable on a failure to train theory under
Section 1983 based on Brady violations committed by
subordinate prosecutors in his underlying criminal
prosecution. Plaintiff asserts that Brady violations were
caused by the defendants' deliberate indifference to an
obvious need to train prosecutors to avoid such
constitutional violations. Plaintiff contends defendants are
liable under the "policy of inaction, " citing
Canton v. Harris, 489 U.S. 378 (1989). Specifically,
plaintiff claims that his "uncharged" greater
offense of "theft or fraud of a check, alteration of a
check" was suppressed in the "silent record, "
or "discovery that was never issued to him." (ECF
No. 14 at 4.) Plaintiff contends that the district
attorney's office failed to train its employees on how to
disclose the greater offense when the evidence of the greater
offense is exculpatory and favorable to the defendant.
Plaintiff argues that if the greater offense was charged as
California Penal Code §§ 476/473(b), it would operate to
reduce Penal Code 530.5(a) identity theft to a misdemeanor
per se. Plaintiff asserts that once defendants appear,
plaintiff will be able to prove his case by discovering the
evidence that was not disclosed in his case, citing
Connick v. Thompson, 563 U.S. 51 (2011). In
conclusion, plaintiff claims that the defendants violated his
Eighth Amendment rights and were deliberately indifferent
because they were obligated to disclose the exculpatory
evidence of the greater offense of California Penal Code §§
476/473(b), and are therefore liable for their failure to
prisoner may not recover damages under § 1983 for allegedly
unconstitutional imprisonment, or for any other harm caused
by "actions whose unlawfulness would render the
imprisonment invalid, " unless he can prove that the
conviction or other basis for confinement has been reversed
on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such a
determination, or called into question by a federal
court's issuance of a writ of habeas corpus). Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994). "A state
prisoner's § 1983 action is barred (absent prior
invalidation) - no matter the relief sought (damages or
equitable relief), no matter the target of the prisoner's
suit (state conduct leading to conviction or internal prison
proceedings) - if success in that action would
necessarily demonstrate the invalidity of confinement or its
duration." Wilkinson v. Dotson, 544 U.S. 74,
plaintiff's challenge would necessarily implicate the
validity of his underlying criminal conviction. In his motion
to amend, plaintiff concedes that had the prosecution
disclosed the Brady material, it would change the outcome of
his underlying criminal case because it would operate to
reduce the charged offense and trigger constitutional error
under Chapman v. California, 386 U.S. 18 (1967), and
would reduce the felony to a misdemeanor of the lesser
included offense. (ECF No. 23 at 3.) Thus, if plaintiff
wishes to challenge the district attorney's office's
failure to release evidence of plaintiff's greater
offense, even under a failure to train theory, he must first
obtain a reversal of his conviction through a writ of habeas
corpus under 28 U.S.C. § 2254.
reliance on Connick, 563 U.S. at 51, is unavailing
for two reasons. First, in Connick, the prisoner's
conviction was vacated, so the prisoner's civil rights
claims were not barred by Heck. Second, and more importantly,
in Connick, the Supreme Court held that a district
attorney's office could not be held liable under § 1983
for failure to train based on a single Brady violation.
Connick, 563 U.S. at 54. The prisoner in Connick
relied on a theory of "single-incident" liability
hypothesized in City of Canton, Ohio v. Harris, 109
S.Ct. 1197 (1989). The Court found that the failure to
train prosecutors in their Brady obligations does not fall
within the narrow range of Canton's hypothesized single
incident liability. Connick, 563 U.S. at 63. The
Supreme Court found that Brady violations differ dramatically
from the hypothetical involving armed police in Canton.
Connick, 563 U.S. at 64-68. The civil rights
"statute does not provide plaintiffs or courts carte
blanche to micromanage local governments throughout the
United States." Connick, 563 U.S. at 68.
"The reason why the Canton hypothetical is inapplicable
is that attorneys, unlike police officers, are equipped with
the tools to find, interpret, and apply legal
principles." Connick, 563 U.S. at 69. Here,
plaintiff does not assert a failure to train claim based on
pattern or practice, but similarly relies on the alleged
failure of prosecutors to disclose discovery in his criminal
prosecution. Thus, plaintiff's claim is unavailing under
Connick or Canton.
plaintiff's second amended complaint is dismissed without
prejudice. Leave to amend should be granted if it appears
possible that the defects in the pleading could be corrected,
especially if a plaintiff is pro se. Lopez v. Smith,
203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); see also
Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.
1995) ("A pro se litigant must be given leave to amend
his or her complaint, and some notice of its deficiencies,
unless it is absolutely clear that the deficiencies of the
complaint could not be cured by amendment.") (citing
Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.
1987)). However, if, 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 1005-06.
plaintiff's claim is barred under Heck, granting
plaintiff leave to amend his pleading again would be futile.
Therefore, plaintiff's second amended complaint is