United States District Court, E.D. California
SECOND ORDER DIRECTING PLAINTIFF TO FILE A FIRST
AMENDED COMPLAINT 21-DAY DEADLINE
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
Plaintiff
alleges that Defendants denied him access to the courts by
failing to mail his direct appeal of his criminal conviction.
(Doc. 1.) The Court found that Plaintiff's claims were
barred by the “favorable termination rule” of
Heck v. Humphrey, 512 U.S. 477 (1994), and dismissed
this case. (Docs. 17, 19.) Plaintiff appealed. (Doc. 21.) The
Ninth Circuit affirmed the Court's judgement with respect
to Plaintiff's request for release from custody, but it
vacated the judgment and remanded with respect to
Plaintiff's requests for relief other than release. (Doc.
26.) The Court then screened Plaintiff's complaint
pursuant to 28 U.S.C. § 1915A and found that it failed
to state a cognizable claim, and it granted Plaintiff leave
to file a first amended complaint. (Doc. 28.)
Plaintiff
filed a response to the Court's screening order on
January 2, 2020. (Doc. 33.) In his response, Plaintiff
provides various legal standards for mail and access to
courts claims, section 1983 actions, and motions to dismiss.
(Id. at 2-10.) Plaintiff also provides a legal
argument for why he states a cognizable access to courts
claim and why he should be awarded damages for the bail he
forfeited as a result of Defendants' conduct.
(Id. at 6-7, 10-11.) However, Plaintiff does not
address the crux of the Court's screening order, which is
that Plaintiff fails to state a viable access to courts claim
because he does not show that his underlying claim (i.e., his
direct appeal in state court) is non-frivolous or arguable.
(See Doc. 28 at 4.) The Court, therefore, again
instructs Plaintiff to file a first amended complaint curing
this deficiency.
In the
introduction of his response, Plaintiff also states,
“[a]lthough the plaintiff had requested to amend the
complaint to submit barred issues by way of §2254
petition, he believes that … Rule 15(c) … would
show the existence of a common core of operative
facts…. The only difference would be a change from 42
U.S.C.§ 1983 to §2254 petition for writ of habeas
corpus by a person in custody regarding barred issues.”
(Doc. 33 at 2.) It is unclear whether Plaintiff is attempting
to request leave to file an amended pleading in the form of a
habeas petition, particularly because, in his
conclusion, Plaintiff's only specific request for relief
is “the reimbursement of the forfeited bond
amount.” (Id. at 11.)
To the
extent that Plaintiff does request leave to file an amended
pleading in the form of a habeas petition, the Court
denies the request. In its findings and recommendations
issued in April of 2019, which were adopted by the assigned
District Judge, the Court informed Plaintiff that his claims
were not “cognizable under section 1983 until the
underlying actions he complains of have been reversed,
expunged, declared invalid, or called into question by writ
of habeas corpus.” (Doc. 17 at 6; Doc. 19 at 2.)
Instead of filing a habeas petition at that time,
Plaintiff appealed the Court's ruling to the Ninth
Circuit, which in turn held that Plaintiff's request for
release from custody was barred under Heck, 512 U.S.
at 487-88. (Doc. 22 at 1; Doc. 26 at 1.)
As the
Court stated in its order denying Plaintiff's motion for
release from prison, Plaintiff cannot seek both damages under
section 1983 and release from custody in the same action.
(See Doc. 30.) Where a complaint alleges some claims
that sound in habeas and others that do not, the
Court may dismiss the habeas claims and allow the
non-habeas claims to proceed, as it has done here.
See Trimble v. City of Santa Rosa, 49 F.3d 583, 586
(9th Cir. 1995); Ybarra v. Reno Thunderbird Mobile Home
Vill., 723 F.2d 675, 681 (9th Cir. 1984). The Court will
not convert a defective complaint containing both
habeas claims and section 1983 claims into a
habeas petition. See Trimble, 49 F.3d at
586.
Furthermore,
Plaintiff has not shown that he exhausted his habeas
claims in state court, as is required by 28 U.S.C. §
2254(b). Preiser v. Rodriguez, 411 U.S. 475, 477
(1973). Since Plaintiff does not make this showing, the Court
finds that leave to amend his complaint into a
habeas petition would be futile. Lockheed Martin
Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th
Cir. 1999) (“Where the legal basis for a cause of
action is tenuous, futility supports the refusal to grant
leave to amend.”).
Accordingly,
the Court again ORDERS Plaintiff, within 21 days
from the date of service of this order, to file a first
amended complaint curing the deficiencies identified in the
Court's screening order, (Doc. 28), OR a notice of
voluntary dismissal of this entire section 1983 action. Any
amended complaint should contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed. R. Civ. Pro. 8(a)(2); it should not
contain detailed legal arguments. If Plaintiff fails to
comply with this order, the Court will recommend that this
action be dismissed with ...