Frye v. State of California

Northern District of California, cand-4:2014-cv-05470

ORDER OF DISMISSAL; AND DENYING PLAINTIFF'S MOTIONS FOR RECONSIDERATION by Judge Yvonne Gonzalez Rogers; denying {{16}} Motion to Appoint Counsel and {{19}}.

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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 JERRY GRANT FRYE, 4 Case No. 14-cv-05470-YGR (PR) Plaintiff, 5 ORDER OF DISMISSAL; AND v. DENYING PLAINTIFF'S MOTIONS 6 FOR RECONSIDERATION STATE OF CALIFORNIA, et al., 7 Defendants. 8 9 I. INTRODUCTION 10 Plaintiff Jerry Grant Frye, an inmate on death row at San Quentin State Prison, filed a pro 11 se prisoner's civil rights complaint under 42 U.S.C. § 1983, complaining that the California 12 process for reviewing capital convictions and sentences is unlawfully slow and inadequate. Northern District of California United States District Court 13 Plaintiff's motion to proceed in forma pauperis has been granted. Dkt. 12. His request for 14 appointment of counsel has been denied. Id. 15 Pursuant to 28 U.S.C. § 1915A, the Court reviewed the complaint, identified numerous 16 deficiencies in it, and dismissed it with leave to amend. Dkt. 9. Plaintiff then filed an amended 17 complaint, which is now before the Court for review. 18 Plaintiff has also filed a document entitled, "Response to the Court[']s Denial of 19 Appointment of Counsel, and Renewal of the Request for Appointment of Counsel." Dkt. 16. In 20 addition, he has filed a document entitled, "Re: Amended Claim Addition," in which he again 21 requests appointment of counsel due to his "ignorance [of] the legal system and [his] lack of 22 comprehension." Dkt. 19 at 1-2. The Court construes both aforementioned documents to be 23 Plaintiff's motions for reconsideration of the Court's January 14, 2015 Order denying appointment 24 of counsel. 25 II. DISCUSSION 26 A. Plaintiff's Motions for Reconsideration 27 Before the Court are Plaintiff's motion for reconsideration of the Court's January 14, 2015 28 Order denying appointment of counsel. Dkts. 16, 19. 1 Rule 60(b) provides for reconsideration only upon a showing of: (1) mistake, inadvertence, 2 surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not 3 have been discovered before the court's decision; (3) fraud by the adverse party; (4) a void 4 judgment; (5) a satisfied or discharged judgment; or (6) any other reason justifying relief. See 5 Fed. R. Civ. P. 60(b). Subparagraph (6) requires a showing that the grounds justifying relief are 6 extraordinary. Mere dissatisfaction with the Court's order, or belief that the Court is wrong in its 7 decision, are not grounds for relief under subparagraph (6) or any other provision of Rule 60(b). 8 "'[T]he major grounds that justify reconsideration involve an intervening change of controlling 9 law, the availability of new evidence, or the need to correct a clear error or prevent manifest 10 injustice.'" Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989) 11 (quoting United States v. Desert Gold Mining Co., 433 F.2d 713, 715 (9th Cir. 1970)). 12 Here, Plaintiff presents no grounds that warrant reconsideration. As explained in the Northern District of California United States District Court 13 Court's Order denying appointment of counsel, there is no constitutional right to counsel in a civil 14 case unless an indigent litigant may lose his physical liberty if he loses the litigation. See Lassiter 15 v. Dep't of Soc. Servs., 452 U.S. 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 16 1997) (no constitutional right to counsel in section 1983 action), withdrawn in part on other 17 grounds on reh'g en banc, 154 F.3d 952 (9th Cir. 1998) (en banc). The court may ask counsel to 18 represent an indigent litigant under 28 U.S.C. § 1915 only in "exceptional circumstances," the 19 determination of which requires an evaluation of both (1) the likelihood of success on the merits, 20 and (2) the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 21 legal issues involved. See id. at 1525; Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 22 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Both of these factors must be 23 viewed together before reaching a decision on a request for counsel under section 1915. See id. 24 Plaintiff has failed to make the requisite showing for reconsideration. Nor is the Court otherwise 25 persuaded that exceptional circumstances are present that warrant the appointment of counsel. 26 Accordingly, Plaintiff's motions for reconsideration are DENIED. Dkts. 16, 19. 27 B. Amended Complaint Fails to Correct Deficiencies and Plead a Cognizable Claim 28 A federal court must engage in a preliminary screening of any case in which a prisoner 2 1 seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 2 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any 3 claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or 4 seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b). 5 Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 6 696, 699 (9th Cir. 1990). 7 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 8 right secured by the Constitution or laws of the United States was violated, and (2) that the 9 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 10 U.S. 42, 48 (1988). 11 According to the state court's online database, Plaintiff's 1988 judgment of conviction has 12 been affirmed on appeal. See People v. Frye (Jerry Grant), Case No. S007198 (July 30, 1998); Northern District of California United States District Court 13 People v. Frye, 18 Cal. 4th 894 (1998), cert. denied, 526 U.S. 1023 (1999). The state court 14 database also indicates that his two state habeas petitions have been denied. See Frye (Jerry 15 Grant) on H.C., Case No. S062455 (Oct. 14, 1998); Frye (Jerry Grant) on H.C., Case 16 No.S087755 (Jan. 24, 2001). Thus, it appears that all his subsequently-filed state actions are 17 closed.1 Plaintiff filed a federal habeas petition in the Eastern District of California (Frye v. 18 Warden of San Quentin State Prison, E.D. Case No. 2:99-cv-00628-KJM-CKD), which is 19 currently still pending. 20 As previously noted in its Order of Dismissal with Leave to Amend, see Dkt. 15 at 3 note 21 1, the Court again notes that Plaintiff's original complaint was substantially similar to several 22 "form" complaints filed by death row inmates that have been frequently dismissed. See Bolin v. 23 State of California, N. D. Cal. Case No. C 14-4087 PJH (dismissed for failure to state a claim and 24 for Younger abstention and barred by Heck); Theodore Shove v. Brown, N. D. Cal. Case No. C 12- 25 211 RMW (dismissed for failure to state a claim and affirmed on appeal); Duff v. Brown, N. D. 26 27 1 If there were any pending state actions related to his conviction, this Court would have to 28 abstain from adjudicating, and then dismiss, this action. Younger v. Harris, 401 U.S. 37, 43-54 (1971). 3 1 Cal. Case No. C 12-529 EMC (dismissed for failure to state a claim and for Younger abstention); 2 Paul Bolin v. Brown, N. D. Cal. Case No. C 12-637 PJH (transferred to Eastern District of 3 California, which ultimately dismissed complaint under Younger and Heck, and for failure to state 4 a claim); Richard Vieira v. Brown, E. D. Cal. Case No. 12-cv-0044-AWI-MJS (dismissed for 5 failure to state a claim and pursuant to Younger and Heck); Carlos Avena v. Brown, C. D. Cal. 6 Case No. 12-cv-00485-UA-DUTY (denying in forma pauperis application because application 7 was incomplete and the judicial officers had immunity from the suit); Spencer Brasure v. Brown, 8 C. D. Cal. Case No. 12-CV-1027-UADUTY (denying in forma pauperis application because the 9 court lacked jurisdiction; the complaint was frivolous, malicious or failed to state a claim; and the 10 complaint sought monetary relief from a defendant immune from such relief). 11 As mentioned above, the Court dismissed Plaintiff's original 61-page complaint with leave 12 to amend. Dkt. 15. However, Plaintiff's 29-page amended complaint fails to correct most of the Northern District of California United States District Court 13 deficiencies discussed in the Court's Order of Dismissal with Leave to Amend. Specifically, 14 Plaintiff's amended complaint and the attached document entitled, "Exhibit A. . . Statement of the 15 Case" fail to allege a short and plain statement of each claim for relief he wished to assert. 16 Instead, these documents mainly complain about Petitioner's "unlawful conviction [which] was 17 obtained by and through unqualified counsel, and prosecutor's criminal actions of violations of 18 laws, before and during trial." Dkt. 17 at 15.2 19 First, to the extent that Plaintiff seeks relief from his conviction and sentence, this action 20 must be dismissed because his petition for such relief is before the United States District Court for 21 the Eastern District of California. See Frye v. Warden of San Quentin State Prison, E.D. Case No. 22 2:99-cv-00628-KJM-CKD. Allowing this section 1983 action to proceed would duplicate and 23 complicate those appellate proceedings. Also, a petition for writ of habeas corpus is the 24 appropriate method to challenge the validity or duration of incarceration, not a section 1983 25 action, which is the method to challenge the conditions of confinement. See Badea v. Cox, 931 26 F.2d 573, 574 (9th Cir. 1991). 27 2 28 Page number citations refer to those assigned by the Court's electronic case management filing system and not those assigned by Plaintiff. 4 1 Second, damages and injunctive relief are barred by Supreme Court precedent. In order to 2 recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm 3 caused by actions whose unlawfulness would render a conviction or sentence invalid, a 42 U.S.C. 4 § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, 5 expunged by executive order, declared invalid by a state tribunal authorized to make such 6 determination, or called into question by a federal court's issuance of a writ of habeas corpus. 7 Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). In its Order of Dismissal with Leave to 8 Amend, the Court instructed Plaintiff "not [to] assert any section 1983 claim that would call into 9 question the validity of his conviction as long as the conviction remains in place." Dkt. 15 at 4. 10 However, in the relief section of his amended complaint, Plaintiff requests "[a] preliminary and 11 permanent injunction ordering the defendants, State of California, to acknowledge the violations 12 of [his] constitutional civil rights, and release [him] from prison." Dkt. 17 at 12. Again, this form Northern District of California United States District Court 13 of relief is squarely barred by the Heck rule discussed above and in the Order of Dismissal with 14 Leave to Amend. See Dkt. 15 at 3-4. Plaintiff has made no showing that his conviction meets the 15 Heck standard, and a judgment in his favor in this action would necessarily imply the invalidity of 16 his conviction or sentence. See Heck, 512 U.S. at 487. The Heck rule also bars consideration of 17 any claim (such as the prosecutorial and judicial misconduct claims as well as ineffective 18 assistance of attorney claims Plaintiff mentions, see Dkt. 17 at 4-11) that would call into question 19 the validity of the conviction or sentence. 20 Further leave to amend will not be granted because the Court already has explained to 21 Plaintiff the specific deficiencies in his pleading and he has been unable or unwilling to correct 22 them. 23 III. CONCLUSION 24 For the foregoing reasons, the Court orders as follows: 25 1. The Court DENIES Plaintiff's motions for reconsideration of the Court's January 26 14, 2015 Order denying appointment of counsel. Dkts. 16, 19. 27 2. This action is DISMISSED without further leave to amend because the amended 28 complaint fails to comply with the Court's order to correct the deficiencies that existed in the 5 1 original complaint. 2 3. The Clerk of the Court shall enter judgment, terminate any pending motions, and 3 close the file. 4 4. This Order terminates Docket Nos. 16 and 19. 5 IT IS SO ORDERED. 6 Dated: April 14, 2016 7 ______________________________________ YVONNE GONZALEZ ROGERS 8 United States District Judge 9 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6