United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding pro se. Plaintiff seeks
relief pursuant to 42 U.S.C. § 1983, and has requested
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). As set
forth below, the court finds that plaintiff's complaint
should be dismissed without leave to amend.
submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in
forma pauperis will be granted.
is required to pay the statutory filing fee of $350.00 for
this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By
this order, plaintiff will be assessed an initial partial
filing fee in accordance with the provisions of 28 U.S.C.
§ 1915(b)(1). By separate order, the court will direct
the appropriate agency to collect the initial partial filing
fee from plaintiff's trust account and forward it to the
Clerk of the Court. Thereafter, plaintiff will be obligated
to make monthly payments of twenty percent of the preceding
month's income credited to plaintiff's trust account.
These payments will be forwarded by the appropriate agency to
the Clerk of the Court each time the amount in
plaintiff's account exceeds $10.00, until the filing fee
is paid in full. 28 U.S.C. § 1915(b)(2).
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1989), superseded by statute as stated in Lopez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).
names Donell Slivka, Sacramento County Deputy District
Attorney, as the sole defendant. Slivka prosecuted plaintiff
in criminal case number 09F09095. Plaintiff alleges that
defendant knowingly presented false evidence and testimony,
and kept material and favorable evidence from the plaintiff
and the jury, all constituting prosecutorial misconduct under
the Fifth, Sixth and Fourteenth Amendments. Plaintiff
contends he did not discover the evidence of this alleged
misconduct until 2013-14. Plaintiff seeks money damages.
prisoner challenges the legality or duration of his custody,
or raises a constitutional challenge which could entitle him
to an earlier release, his sole federal remedy is a writ of
habeas corpus. Preiser v. Rodriguez, 411 U.S. 475
(1973). Moreover, when seeking damages for an allegedly
unconstitutional conviction or imprisonment, “a §
1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C.
§ 2254.” Heck v. Humphrey, 512 U.S. 477,
487-88 (1994). If plaintiff prevailed on his claim that he
was wrongfully convicted, a judgment in plaintiff's favor
would necessarily imply the invalidity of plaintiff's
addition, where, as here, a state prosecutor engaged in
activities intimately associated with the judicial phase of
the criminal process, he is entitled to absolute immunity.
Broam v. Bogan, 320 F.3d 1023 (9th Cir. 2003);
see also Ashelman v. Pope, 793 F.2d 1072, 1075 (9th
Cir. 1986) (“Prosecutors are absolutely ...