United States District Court, E.D. California
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, has filed a civil rights
action pursuant to 42 U.S.C. § 1983, together with a
request for leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. Plaintiff has consented to the
jurisdiction of the undersigned United States Magistrate
Judge for all purposes pursuant to 28 U.S.C. § 636(c)
and Local Rule 305(a). See ECF No. 13.
has demonstrated entitlement to proceed in forma pauperis
status under 28 U.S.C. § 1915(a). See ECF Nos.
6, 12. However, because this action will be dismissed, no fee
will be imposed.
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. See 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, ” fail to state
a claim upon which relief may be granted, or seek monetary
relief from an immune defendant. See 28 U.S.C.
§ 1915A(b)(1), (2). A pro se litigant is entitled to
notice of the deficiencies in his complaint and an
opportunity to amend, if it appears that the deficiencies can
be cured by amendment. See Noll v. Carlson, 809 F.2d
1446, 1448 (9th Cir. 1987).
of the instant complaint demonstrates that it fails to state
a claim upon which relief may be granted, and that the
deficiencies of the complaint cannot be cured by amendment.
six-page complaint is set forth on a form used by the United
States District Court for the Northern District of
California. The complaint was originally filed in that
district on November 20, 2016, and transferred to this court
on February 15, 2017. Plaintiff was then incarcerated at
California State Prison Solano (CSP-SOL), where he remains.
complaint names four defendants: (1) Willows Police Officer
Michael Stover, (2) plaintiff's trial counsel, Colusa
attorney Albert Smith, (3) Glenn County Superior Court Judge
Donald Cole Byrd, and (4) Glenn County Assistant District
Attorney Ruby Neumann. Plaintiff alleges that Officer Stover
“falsified statements & tampered with
evidence” relative to his “illegal search &
seizure” in violation of plaintiff's Fourth
Amendment rights; that both attorneys and the judge
“took part in this malicious prosecution” against
plaintiff; that defense counsel Smith polled only 49
potential jurors, allowed protected statements to be admitted
at trial in violation of plaintiff's rights under
Miranda v Arizona, 384 U.S. 436 (1966), and failed
to introduce exculpatory evidence, thus providing ineffective
assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984); and that Judge Byrd
“allowed tampered evidence in the courtroom, ”
and improperly denied plaintiff's good cause hearing. The
relief sought by the complaint is “Vacate sentence.
Award 1, 000, 000 dollars in damages.” ECF No. 1 at 3.
Plaintiff avers that he did not administratively exhaust his
claims because this cases “deal[s] with my
conviction.” ECF No. 1 at 2.
is informed that federal courts offer two main avenues for
challenging one's state imprisonment - a civil rights
complaint pursuant to 42 U.S.C. § 1983, and a petition
for habeas corpus pursuant to 28 U.S.C. § 2254.
Challenges to the conditions of one's confinement are
brought in a civil rights action, while challenges to the
validity or duration of one's confinement (conviction
and/or sentence) are brought in a habeas action. There are
important conditions precedent to both types of actions - a
civil rights action may be brought only after plaintiff has
exhausted his prison administrative remedies, while a habeas
action may be brought only after petitioner has exhausted his
claims in the state courts. Although money damages may be
obtained pursuant to a successful civil rights action, they
may not be obtained in a habeas action.
does not challenge the conditions of his confinement, and
concedes that he has not exhausted any administrative
remedies. Therefore, this action cannot proceed under 42
U.S.C. § 1983. Moreover, two of the named defendants are
immune from suit.
plaintiff obtain the relief he seeks under 28 U.S.C. §
2254. Review of California appellate court
dockets indicates that plaintiff filed a notice of
appeal from his conviction on November 10, 2015. However, the
appeal has not yet been decided and was not fully briefed
until March 29, 2017. See California Court of
Appeal, Third District, Case No. C080705 (People v.
Roberson). There is no indication that plaintiff has
sought review or habeas corpus from the California Supreme
Court. Because plaintiff has not exhausted potential habeas
claims in the state courts, this court would be unable to
grant relief in a habeas proceeding. See 28 U.S.C.
these several reasons, the court finds that plaintiff's
pleading cannot be cured by amendment, and that this action
must be dismissed. Accordingly, IT IS HEREBY ORDERED that:
Plaintiff's request to proceed in forma pauperis is
granted; however, no fee is imposed.
action is dismissed without prejudice for failure to state a
cognizable claim, and because this ...