Opinion
3:24-cv-00745-SB
08-05-2024
NATHAN Z. BRENT, Plaintiff, v. STATE OF OREGON, Defendant.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE
Plaintiff Nathan Brent (“Brent”), a self-represented litigant, filed this 42 U.S.C. § 1983 action against the State of Oregon, alleging that he was wrongfully prosecuted, convicted, and imprisoned in violation of his constitutional rights. After the Court granted Brent's application to proceed in forma pauperis (“IFP”) and ordered Brent to show cause why the Court should not dismiss his complaint for failing to state a claim, Brent timely filed an amended complaint on July 15, 2024.
Brent's amended complaint remains subject to screening and sua sponte dismissal under 28 U.S.C. § 1915(e)(2) because the Court granted Brent leave to proceed IFP. See Stephens v. Biden, No. 3:23-cv-00817, 2024 WL 554274, at *1 (D. Or. Jan. 26, 2024) (making the same observation and screening an amended complaint), findings and recommendation adopted, 2024 WL 665177, at *1 (D. Or. Feb. 15, 2024). For the reasons explained below, the Court recommends that the district judge dismiss this action without prejudice but without leave to amend in this court.
LEGAL STANDARDS
I. THE IFP STATUTE
The IFP statute, which is codified at 28 U.S.C. § 1915, provides, in relevant part, that a district “court shall dismiss [a plaintiff's IFP complaint] at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc) (stating that Section “1915(e) applies to all [IFP] complaints, not just those filed by [adults in custody]”). Section 1915(e) “authorizes ‘sua sponte dismissals of [IFP] cases[.]'” Hebrard v. Nofziger, 90 F.4th 1000, 1006-07 (9th Cir. 2024) (citing Jones v. Bock, 549 U.S. 199, 214 (2007)).
II. PLEADING SUFFICIENCY
A plaintiff's “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court has explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Although “[t]he plausibility standard is not akin to a ‘probability requirement,' . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). Consequently, “where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557).
III. SELF-REPRESENTED LITIGANTS
Courts “have a duty to read a pro se complaint liberally,” Sernas v. Cantrell, 857 Fed.Appx. 400, 401 (9th Cir. 2021), and should treat “pro se litigants . . . with ‘great leniency' when evaluating compliance with ‘the technical rules of civil procedure.'” Seals v. L.A. Unified Sch. Dist., 797 Fed.Appx. 327, 327 (9th Cir. 2020) (quoting Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986)). As the Ninth Circuit has recognized, there is a “good reason” that courts “afford leeway to pro se parties, who appear without counsel and without the benefit of sophisticated representation: ‘Presumably unskilled in the law, the pro se litigant is far more prone to making errors in pleading than the person who benefits from the representation of counsel.'” Huffman v. Lindgren, 81 F.4th 1016, 1021 (9th Cir. 2023) (quoting Lopez, 203 F.3d at 1131).
There are, however, limits on the leeway that courts afford to self-represented litigants. For example, although courts “construe pro se pleadings liberally, especially in civil rights cases, . . . [courts] ‘may not supply essential elements of the claim that were not . . . pled[.]'” Owen v. City of Hemet, No. 21-55240, 2022 WL 16945887, at *1 (9th Cir. Nov. 15, 2022) (citing Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) and quoting Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014)); Salazar v. Regents of Univ. of Cal., 812 Fed.Appx. 410, 412-13 (9th Cir. 2020) (same); see also Byrd v. Maricopa Cnty. Sheriff's Dep't, 629 F.3d 1135, 1140 (9th Cir. 2011) (en banc) (stating that a district court's “liberal interpretation of a pro se civil rights complaint may not supply essential elements of the claim that were not initially pled”) (simplified).
BACKGROUND
In March 2002, an Oregon jury convicted Brent of felony offenses, including Robbery in the First Degree and Robbery in the Second Degree.(See Compl. at 1-2, ECF No. 1); Docket Sheet, Oregon v. Brent, No. 01-08-35545 (Multnomah Cnty. Cir. Ct. Mar. 6, 2002); Answer to Petition for Writ of Habeas Corpus at 1-4, Brent v. Nooth, No. 08-cv-00669-PK (D. Or. May 26, 2009), ECF No. 23.
The Court may take judicial notice of undisputed matters of public record from Brent's state court and federal habeas cases, which have a direct relation to matters at issue. See Wilkins v. Corr. Officers, No. 22-55745, 2024 WL 977679, at *1 n.2 (9th Cir. Mar. 7, 2024) (stating that courts “may take judicial notice of legal proceedings,” and taking judicial notice of the plaintiff's federal civil cases, the plaintiff's “rejected filings in the district court,” and the “dockets and dismissal orders in [the plaintiff's two cases]”); Karas v. Cal. Dep't of Corr. & Rehab., No. 2115905, 2023 WL 8889552, at *1 n.3 (9th Cir. Dec. 26, 2023) (taking judicial notice of six documents from the plaintiff's “prior habeas proceeding,” including the habeas petition, the state's informal response to the petition, court orders, a judgment, and a docket sheet, and noting that the Ninth Circuit has held that courts “may take judicial notice of undisputed matters of public record . . . including documents on file in federal or state courts” (quoting Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012))); Harris, 682 F.3d at 1132 (holding that the court “may take judicial notice of undisputed matters of public record . . . including documents on file in federal or state courts” (citing Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002))).
In his complaint, Brent alleges that the jury's verdict was not unanimous and “retroactively struck down,” and he was unlawfully imprisoned for “ninety months, [including] three hundred plus days in solitary.” (Compl. at 2); see also Petition for Writ of Habeas Corpus at 1-14 & Answer to Petition for Writ of Habeas Corpus at 2, Brent v. Nooth, No. 08-cv-00669-PK (D. Or. May 26, 2009), ECF Nos. 1 and 23 (addressing Brent's convictions for, among other things, Robbery in the First Degree and Robbery in the Second Degree, and noting that following a jury trial, the court sentenced Brent to “concurrent prison terms of 90 months and 70 months, respectively”); see also Exhibit 105 in Support of Answer, Brent v. Nooth, No. 08-cv-00669-PK (D. Or. May 26, 2009), ECF No 24-1 at 105-06 of 448 (noting that Brent's first and second degree robbery convictions were based on “11-1” verdicts, see Trial Tr. vol. 3, 261:3-263:3, Feb. 28, 2001)).
After Brent appealed his convictions, the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. SeeState v. Brent, 99 P.3d 1237 (Or. Ct. App. 2004), rev. denied, 107 P.3d 26 (Or. 2005); Petition for Writ of Habeas Corpus at 2-12 & Answer to Petition for Writ of Habeas Corpus at 2, Brent v. Nooth, No. 08-cv-00669-PK (D. Or. May 26, 2009), ECF Nos. 1 and 23 (citing the decisions). Brent also filed an amended petition for post-conviction relief in Malheur County Circuit Court, but the trial court denied relief, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. See Docket Sheet, Brent v. Hill, No. 05-08-4612M (Malheur Cnty. Cir. Ct. Aug. 19, 2005); Brent v. Hill, 167 P.3d 1010 (Or. Ct. App. 2007), rev. denied, 174 P.3d 1016 (Or. 2007); Petition for Writ of Habeas Corpus at 2-12 & Answer to Petition for Writ of Habeas Corpus at 2, Brent v. Nooth, No. 08-cv-00669-PK (D. Or. May 26, 2009), ECF Nos. 1 and 23 (citing these decisions).
On June 4, 2008, Brent filed a 28 U.S.C. § 2254 petition for writ of habeas corpus in federal district court. See Petition for Writ of Habeas Corpus at 1, Brent v. Nooth, No. 08-cv-00669-PK (D. Or. June 4, 2008), ECF No. 1. During his habeas proceeding, Brent completed his ninety-month sentence, the Oregon Department of Corrections (“ODOC”) released Brent from Snake River Correctional Institution (“SRCI”), and Brent's court-appointed counsel withdrew from the case. See Petition for Writ of Habeas Corpus at 1 & Civil Minutes, Brent v. Nooth, No. 08-cv-00669-PK (D. Or. June 4, 2008 and May 28, 2009), ECF Nos. 1 and 28 (reflecting that Brent was housed at SRCI when he filed his habeas petition, and that Brent would proceed as a self-represented litigant and receive all future case filings at his home address in Oregon after his counsel withdrew).
About six months after Brent's counsel withdrew and Brent elected to proceed as a selfrepresented litigant, the district court issued an Order to Show Cause (“OSC”) in Brent's habeas proceeding. See Order to Show Cause at 1-2, Brent v. Nooth, No. 08-cv-00669-PK (D. Or. Nov. 16, 2009), ECF No. 30. The district court ordered Brent to “show cause, within [thirty] days of [the OSC], why relief on the Petition should not be denied for the reasons set forth in [the] [r]espondent's Response to Petition for Writ of Habeas Corpus,” and advised Brent that if he failed to do so, the district court would dismiss Brent's habeas proceeding “with prejudice.” Id.
Brent did not respond to the district court's OSC. As a result, on December 30, 2009, the district court entered an Order to Dismiss and Judgment in Brent's habeas case. See Order to Dismiss at 1-2 & Judgment at 1, Brent v. Nooth, No. 08-cv-00669-PK (D. Or. Dec. 30, 2009), ECF Nos. 31-32.
More than a decade later, the Supreme Court issued its decision in Ramos v. Louisiana, 140 S.Ct. 1390, 1394 (2020), a case concerning “whether the Sixth Amendment right to a jury trial-as incorporated against the States by way of the Fourteenth Amendment-requires a unanimous verdict to convict a defendant of a serious offense.” Id. In Ramos, the Supreme Court “held that a state jury must be unanimous to convict a criminal defendant of a serious offense[, and] repudiated [the Supreme] Court's 1972 decision in Apodaca v. Oregon, 406 U.S. 404, which had allowed non-unanimous juries in state criminal trials.” Edwards v. Vannoy, 593 U.S. 255, 258 (2021).
In 2021, “the Supreme Court decided that the new federal constitutional rule [announced in Ramos]-the jury unanimity rule . . . -[did] not apply retroactively on federal collateral review.” Watkins v. Ackley, 523 P.3d 86, 93 (Or. 2022) (citing Edwards, 593 at 258). The Supreme Court also confirmed that although “[t]he Ramos rule does not apply retroactively on federal collateral review[,] States remain free, if they choose, to retroactively apply the juryunanimity rule as a matter of state law in state post-conviction proceedings.” Edwards, 593 U.S. at 271 n.6.
The next year, the Oregon Supreme Court addressed “the so-called ‘retroactivity' of the constitutional rule announced in Ramos in a post-conviction proceeding under” Oregon's PostConviction Hearing Act (“PCHA”), OR. REV. STAT. §§ 138.510-.680. Watkins, 523 P.3d at 8889 (footnote omitted). The Oregon Supreme Court held that “when a petitioner seeks postconviction relief, on Sixth Amendment grounds, from a judgment of conviction which was based on a nonunanimous verdict and which became final before [Ramos] . . ., the petitioner is entitled to relief-assuming that none of the procedural defenses in the [PCHA] have been raised and sustained.” Id. at 89.
On June 26, 2023, about six months after the Oregon Supreme Court issued its decision in Watkins, Brent filed a Ramos-related petition for post-conviction relief in Multnomah County Circuit Court. See Brent v. Oregon, No. 23-cv-25571 (Multnomah Cnty. Cir. Ct. June 26, 2023). On or about April 5, 2024, the court vacated Brent's robbery convictions and remanded his criminal case to the trial court for further proceedings.(See Stip. Gen. J., Brent v. Oregon, No. 23-cv-25571 (Multnomah Cnty. Cir. Ct. Apr. 5, 2024)).
The Court previously recommended dismissal without prejudice of this case based, in part, on Heck v. Humphrey, 512 U.S. 477 (1994) (see ECF No. 4), but the Court withdrew its opinion upon notice that the state court had resolved Brent's post-conviction claims. (See ECF No. 7.)
On May 1, 2024, Brent filed this § 1983 action against the State of Oregon, alleging that he was wrongfully prosecuted, convicted, and imprisoned in violation of his constitutional rights.
On May 2, 2024, Brent filed an identical complaint alleging vindictive prosecution and wrongful conviction against the State of Oregon in Multnomah County Circuit Court. See Compl., Brent v. Oregon, No. 24-cv-21704 (Multnomah Cnty. Cir. Ct. May 2, 2024).
On June 27, 2024, the Court granted Brent's IFP application and ordered Brent to show cause in writing by July 18, 2024, why the Court should not dismiss his complaint for failure to state a claim. The Court added that in the alternative, Brent could file an amended complaint on or before July 18, 2024. On July 15, 2024, Brent timely filed an amended complaint, which is now before the Court.
DISCUSSION
The Court recommends that the district judge dismiss this action without prejudice but without leave to amend in this court.
“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that ‘(1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff of a federal constitutional or statutory right.'” Murguia v. Langdon, 61 F.4th 1096, 1106 (9th Cir. 2023) (quoting Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011)).
The Court previously advised Brent that the State of Oregon is not subject to suit under § 1983. (ECF No. 8 at 8-9.) Like Brent's initial complaint, Brent's amended complaint names the State of Oregon as the defendant in this § 1983 action. (See Am. Compl. at 1, ECF No. 9, naming in the case caption “Nathan Z. Brent” as the plaintiff and “State of Oregon” as the defendant) (all caps omitted). As a result, the Court concludes that Brent failed to cure a previously identified deficiency, and fails to state a claim upon which relief can be granted. See, e.g., Kroncke v. City of Phoenix, 606 Fed.Appx. 382, 383 (9th Cir. 2015) (holding that “[t]he district court properly dismissed all [of the self-represented plaintiff's] claims against the State of Arizona because it is not subject to suit under § 1983,” and noting that “to state a claim under § 1983, a plaintiff must allege that the violation was committed by a ‘person' acting under color of state law; a state is not considered a ‘person' within the meaning of § 1983” (citing Cortez v. Cnty. of L.A., 294 F.3d 1186, 1188 (9th Cir. 2002))); see also Cortez, 294 F.3d at 1188 (holding that “a state and its officials sued in their official capacity are not considered ‘persons' within the meaning of § 1983, due to the sovereign immunity generally afforded states by the Eleventh Amendment”) (citation omitted).
Brent also failed to cure other previously identified deficiencies. In his initial complaint, Brent alleged that he was “imprisoned by [a] vindictive prosecution,” and that prosecutors “added new charges with enhancements as a result” of an individual's fabricated statements. (Compl. at 1-2, ECF No. 1.) In the OSC, the Court advised Brent that he “cannot hold the Multnomah County District Attorney liable in this action because a prosecutor is immune from liability under Section 1983 when he is functioning in his official capacity under proper jurisdiction.” Order of Dismissal at 4, McShane v. Oregon, No. 2:23-cv-01184-CL (D. Or. Nov. 30, 2023) (McShane, D.J.), ECF No. 8 (footnote omitted) (citing Kalina v. Fletcher, 522 U.S. 118, 126 (1997)); see also id. at 4 n.2 (explaining that “[t]o the extent Plaintiff seeks to hold the Multnomah County District Attorney's Office liable for prosecutorial decisions concerning Plaintiff, the Eleventh Amendment bars such claims,” and “a district attorney's office ‘acts as a state office with regard to actions taken in its prosecutorial capacity, and [it] is not subject to suit under [Section] 1983'” (quoting Jackson v. Barnes, 749 F.3d 755, 767 (9th Cir. 2014))); Nguyen v. Yolo Cnty. Dist. Att'y Off., No. 21-15698, 2022 WL 260864, at *1 (9th Cir. Jan. 27, 2022) (stating that the self-represented plaintiff appealed the dismissal of his “action alleging federal and state law claims arising out of his prosecution for trespassing” and the court “review[ed] de novo a dismissal for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B),” and holding “[t]he district court properly dismissed [the plaintiff's] claims under 42 U.S.C. §§ 1983 and 1985, and state law, because [the] defendant [district attorney's office was] entitled to prosecutorial immunity”) (citations omitted).
The Court also advised Brent that like the Multnomah County District Attorney, the Multnomah County Circuit Court judge who sentenced Brent in the criminal case is entitled to judicial immunity. See Nordin v. Scott, No. 22-15816, 2023 WL 4418595, at *1 (9thCir. July 10, 2023) (holding that the dismissal of the self-represented plaintiff's “claims against [a] defendant [j]udge . . . was proper because [the] [j]udge . . . [was] entitled to judicial immunity,” and stating that “[s]ection 1983 provides judicial officers immunity from injunctive relief even when the common law would not” and “a judge is generally immune from liability in a civil action for damages unless the claim pertains to a non-judicial act or the judge has acted in the clear absence of all jurisdiction”) (simplified).
In his amended complaint, Brent continues to complain of actions that the Multnomah County District Attorney and the Multnomah County Circuit Court judge took during and related to Brent's criminal trial, and he alleges that as a result of a “vindictive prosecution” and the Supreme Court's previous allowance of non-unanimous juries in state criminal trials, he was “wrongfully convict[ed]” and “unlawful[ly] imprison[ed].” (Am. Compl. at 1-3.) Brent's amended complaint suggests that he is attempting to (1) hold the Multnomah County District Attorney liable for prosecutorial decisions concerning, among other things, Brent's charges, an amendment of the indictment, and evidence that the jury considered during Brent's criminal trial, which, as Brent notes, included “state of the art surveillance video that did[] [not] co[rro]b[o]rate the [prosecution's] narrative . . . [, a purportedly] false statement[,] or the allegations of robbery,” and (2) hold the Multnomah County Circuit Court judge liable for judicial acts, such as the judge's decision to deny Brent's counsel's motion for an acquittal despite a non-unanimous jury. (Id.) Based on Brent's allegations, the Multnomah County District Attorney and the Multnomah County Circuit Court judge are entitled to prosecutorial and judicial immunity, respectively. Accordingly, the Court finds that Brent's amended complaint is subject to dismissal on this ground.
Finally, in the OSC, the Court noted that Brent had filed an identical complaint alleging vindictive prosecution and wrongful conviction against the State of Oregon in Multnomah County Circuit Court, and advised Brent that this case is subject to dismissal as duplicative of the pending state case because Brent may not litigate the same claims against the same parties in two different courts. Brent states that he would “suspend the duplicative suit in state court” if the Court “serve[s] [j]ustice in this case[.]” (Am. Compl. at 3.) Given the pending and “duplicative suit in state court,” the Court recommends that the district judge dismiss Brent's amended complaint without prejudice to litigating his claims in state court but without leave to amend in this court. Cf. Powell v. Ridgley, No. 6:20-cv-01932-IM, 2021 WL 398154, at *1-3 (D. Or. Feb. 3, 2021) (noting that the self-represented plaintiff filed an IFP application and “a trio of lawsuits,” “Case 1932,” “Case 1933,” and “Case 1934,” and finding that “Case 1932 and Case 1933 [were] duplicative of another . . . pending [action, Case 1934], and therefore both [were] frivolous” and subject to dismissal without prejudice).
CONCLUSION
For all of these reasons, the Court recommends that the district judge DISMISS Brent's amended complaint (ECF No. 9), without prejudice but without leave to amend in this court.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.