Opinion
CV 21-6304-VBF (JPR)
02-25-2022
GIRARD FLYNN, Plaintiff, v. DISTRICT ATTORNEY OF COMPTON COURTHOUSE et al., Defendants.
P. ROSENBLUTH U.S. MAGISTRATE JUDGE
ORDER DISMISSING ACTION WITH PREJUDICE AND DENYING REQUEST FOR APPOINTMENT OF COUNSEL
VALERIE BAKER FAIRBANK U.S. DISTRICT JUDGE
On March 23, 2021, Plaintiff, a state prisoner, filed pro se a civil-rights action. He alleges that a district attorney and a judge violated his 14th Amendment rights by falsely imprisoning him in 2006 and again in 2007. (See Compl. at 1-3.) He also claims prison officials have erroneously labeled him a “multi prison termer” in his prison files. (Id. at 3.) He seeks money damages, among other relief. (See id. at 4.)
Plaintiff is now serving 25 years to life in state prison for the 2012 murder of his brother. (See Compl. at 7 (for nonconsecutively paginated documents, the Court uses the pagination generated by its Case Management/Electronic Case Filing system)); People v. Flynn, No. B243277, 2013 WL 6835081, at *4 (Cal.Ct.App. Dec. 27, 2013).
On October 13, 2021, the Magistrate Judge ordered Plaintiff to show cause why his lawsuit should not be dismissed. The OSC explained that a prior state-court judgment appeared to preclude his 2006 false-imprisonment claim and that his remaining claims were likely frivolous. On October 25, 2021, he responded.
Much of Plaintiff's response to the OSC discusses his 2012 murder conviction (see Resp. at 1), which is not at issue in his civil-rights lawsuit.
Plaintiff doesn't dispute the OSC's correct finding that claim preclusion bars his 2006 false-imprisonment claim. (See OSC at 3-4); Reyes v. Kaiser Permanente, 782 Fed.Appx. 605, 606 (9th Cir. 2019) (affirming dismissal of complaint because plaintiff had raised its claims in prior state action, which involved same primary rights and parties or their privies and resulted in final judgment on merits), cert. denied, 141 S.Ct. 278 (2020). Nor does he dispute that he was imprisoned in 2007 for violating his Proposition 36 probation and then released because he had accrued enough custody credits to satisfy his prison sentence. (See Resp. at 1-2 (“[I] go to . . . patient rehab but it never works so I go back [to] jail because violated” and “then I run so I go to jail for violated again”); OSC at 4-5.)
“Proposition 36 requires the court to grant probation and drug treatment to any defendant convicted of a nonviolent drug possession offense and prohibits incarceration as a condition of probation.” Bowen v. Lewis, No. CVF01-5483DLBHC., 2005 WL 3283713, at *19 (E.D. Cal. Nov. 29, 2005).
Instead, Plaintiff maintains that he shouldn't have been on probation at all when he violated it. (See Resp. at 1-2.) He claims Proposition 36 “is a [one-year] deal” and he “did [his] time and it was over.” (Id. at 2.) But Plaintiff's conclusory statements, devoid of specific dates, locations, and other identifying information, can't save his claim. See In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (noting that courts need not accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences” (citation omitted)). And in any event, this claim fails under Heck v. Humphrey, 512 U.S. 477 (1994), which bars a civil-rights claim that necessarily implies the invalidity of a conviction or sentence until a prisoner has succeeded in invalidating the conviction or sentence by other means, such as through the grant of a writ of habeas corpus. See id. at 486-87; Baskett v. Papini, 245 Fed.Appx. 677, 678 (9th Cir. 2007) (affirming dismissal of § 1983 claim as Heck-barred because allegations questioned validity of probation revocation).
And as the OSC notes, Defendants are also likely immune from suit. (See OSC at 5 n.7 (citing Dennis v. Sparks, 449 U.S. 24, 27 (1980); Wolfe v. Strankman, 392 F.3d 358, 366 (9th Cir. 2004); Imbler v. Pachtman, 424 U.S. 409, 431 (1976)).)
Finally, Plaintiff continues to insist that he isn't a “multitermer.” (Resp. at 3.) Yet he admits being incarcerated several times even before 2007. (See id. at 2 (stating that he went to “jail” several times before 2007); see also OSC, Attach. 3 at 4 (noting that he was imprisoned for violating probation in 1995 and for violating parole in 2000).) He implies that he isn't a “multitermer” because he had not been convicted of a felony before his 2012 murder conviction. (See Resp. at 3.) But his earlier drug-possession conviction - which was not vacated - was a felony. See People v. Flynn, No. B188371, 2007 WL 1620047, at *1 (Cal.Ct.App. June 6, 2007) (noting that Plaintiff was convicted of violating Health & Safety Code section 11350(a) and was sentenced to two years' imprisonment after violating probation); People v. Myers, 170 Cal.App.4th 512, 516 (2009) (section 11350(a) violation was felony that couldn't be reduced to misdemeanor even though defendant successfully completed Proposition 36 probation).
Even if Plaintiff's prison records contain incorrect information, however, he doesn't allege a constitutional injury. (See Compl. at 6 (alleging that information only “mak[es] [him] look bad” and somehow “mak[es] it hard for [him] to get out” of prison)); Hyland v. Wonder, 972 F.2d 1129, 1142 (9th Cir. 1992) (“[T]he protections of the Due Process Clause do not attach to false or damaging accusations alone.”); Aguilar v. Super. Ct., No. 1:19-cv-01802-NONE-EPG, 2020 WL 5891392, at *5 (E.D. Cal. Oct. 5, 2020) (mere presence of false criminal-history information in prison records doesn't violate constitutional rights), accepted by 2020 WL 7342690 (E.D. Cal. Dec. 14, 2020); see also Anaya v. Barrios, No. 1:16-cv-01750-MJS (PC), 2017 WL 345206, at *3 (E.D. Cal. Jan. 23, 2017) (noting that court was unaware of any decision holding that California had created liberty interest in accurate prison records). What's more, the claim challenges only prison officials' conduct, not that of any Defendant he has sued. The OSC therefore correctly found that Plaintiff's “multitermer” claim was frivolous. (See OSC at 5); Neitzke v. Williams, 490 U.S. 319, 325 (1989) (noting that frivolous complaint is one that lacks “arguable basis either in law or in fact”).
Pro se litigants should be granted leave to amend unless it is absolutely clear that the deficiencies cannot be cured by amendment. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc). Here, they can't because the Complaint's claims are either plainly barred by claim preclusion or inherently frivolous. See id. at 1127 n.8; Neitzke, 490 U.S. at 325; Hernandez v. Fed. Home Loan Mortg. Corp., 663 Fed.Appx. 518, 520 (9th Cir. 2016) (affirming claim-preclusion dismissal without leave to amend).
It therefore is ORDERED that this action is dismissed with prejudice for the reasons stated above and in the Magistrate Judge's October 13, 2021 order, which the Court has read, agrees with, and accepts.
On October 29, 2021, Plaintiff requested that the Court appoint him counsel because he “ha[s] the right to have a lawyer” under the Americans with Disabilities Act of 1990. (Req. at 6.) But there is no such right. See Pierce v. Woodford, No. C 03-04934 JF (PR)., 2009 WL 2605380, at *1 (N.D. Cal. Aug. 25, 2009), aff'd, 416 Fed.Appx. 660 (9th Cir. 2011). At any rate, given that the Court is dismissing the Complaint, his request is denied as moot. See Perez v. Metro. Transit Sys., No. 19-cv-1429-GPC(WVG), 2019 WL 3718793, at *2 (S.D. Cal. Aug. 7, 2019); Rogers v. WalMart Stores, Inc., No. 2:18-cv-05920-ODW(SS), 2018 WL 6930763, at *2 (CD. Cal. Aug. 21, 2018).
LET JUDGMENT BE ENTERED ACCORDINGLY.