Opinion
Civil No. 05cv1788-J (LSP).
April 4, 2006
ORDER DISMISSING FIRST AMENDED COMPLAINT WITHOUT FURTHER LEAVE TO AMEND FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b)
On September 15, 2005, Plaintiff Allan T. Gillmore, a state prisoner incarcerated at Ironwood State Prison in Blyth, California, and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983, accompanied by a Motion to Proceed In Forma Pauperis. Plaintiff alleged that D'Anne Barnes Vandenburgh, a certified court reported appointed to transcribe the sentencing hearing held during his criminal proceedings, violated his constitutional right to due process by failing to accurately transcribe the proceedings. (Compl. at 3.) Plaintiff also alleged that but for the errors and omissions in the transcript of the hearing, the result of his appeal would have been different. (Id.) He sought monetary damages and injunctive relief. (Id. at 7.)
On January 17, 2006, the Court granted Plaintiff leave to proceed in forma pauperis and dismissed the Complaint without prejudice. (Doc. No. 3.) The Court found that Plaintiff had failed to state a claim against the Defendant because, under the doctrine announced in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), a claim which calls into question the validity of his conviction or sentence, such as the instant one, requires Plaintiff to allege facts demonstrating "that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." (See 1/17/05 Order at 3-4) (quoting Heck, 512 U.S. at 486-87). Because Plaintiff had failed to set forth allegations which satisfied the Heck requirement, the Court dismissed the Complaint without prejudice and with leave to file an amended complaint in an attempt to cure this defect of pleading.
Plaintiff has now filed a First Amended Complaint. For the following reasons, the Court finds that Plaintiff has once again failed to allege his conviction has been invalidated as required by Heck. Because it is now clear that Plaintiff's section 1983 claim has not yet accrued, the Court DISMISSES this action without further leave to amend. The dismissal is without prejudice to Plaintiff to present his claim in a separate civil rights action should he ever succeed in satisfying the Heck requirement.
I. Sua Sponte Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) 1915A
Under the provisions of 28 U.S.C. §§ 1915A and 1915(e)(2), the Court is obligated to review complaints filed by all persons "incarcerated or detained in any facility who is accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program," "as soon as practicable after docketing" and regardless of whether the prisoner prepays filing fees or moves to proceed in forma pauperis. 28 U.S.C. §§ 1915A 1915(e)(2). The Court must sua sponte dismiss prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).
"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (§ 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)."). However, while liberal construction is "particularly important in civil rights cases,"Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), the Court may not "supply essential elements of the claim that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Leave to amend should be granted, however, unless it determines that "the pleading could not possibly be cured by the allegation of other facts" and if it appears "at all possible that the plaintiff can correct the defect." Lopez, 203 F.3d at 1130-31.
In this Court's previous Order of dismissal, the Court found that Plaintiff's claim against the Defendant amounts to an attack on the validity of Plaintiff's underlying criminal conviction and/or sentence, and as such, will not be cognizable under 42 U.S.C. § 1983 unless and until Plaintiff is able to show that his underlying conviction or sentence has already been invalidated. (See 1/17/06 Order at 3-4) (citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). Plaintiff was informed that:
In Heck, the Supreme Court held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a section 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 486-87. A civil rights claim challenging the legality of a conviction or the length of confinement that has not been so invalidated is not cognizable under § 1983. Id. at 487; Edwards v. Balisok, 520 U.S. 641, 643 (1997).
(1/17/06 Order at 3-4.)
Plaintiff alleged in the original Complaint that, but for the transcription errors by the Defendant, the result of his appeal would have been different. The Court found that if Plaintiff were to succeed on his claim, he would necessarily call into question the validity of his conviction, sentence and/or continuing incarceration. (Id. at 4.) Since Plaintiff had not alleged that his conviction or sentence had been declared invalid as required by Heck, the Court found that his Complaint failed to state a claim upon which relief may be granted and was subject to dismissal without prejudice. (Id.)
In the First Amended Complaint, Plaintiff once again alleges that Defendant D'Ann Barnes Vandenberg, the court reporter at his state court sentencing hearing, failed to accurately transcribe statements made between counsel and the sentencing judge. (First Amended Complaint "FAP" at 3.) Specifically, he contends that his counsel at sentencing informed the sentencing judge that counsel assumed that two of Plaintiff's strikes were to be stricken prior to sentencing, that the judge stated he or she agreed to strike only one of the strikes, and that "when imposing restitution [the judge would determine if any] losses accrued." (Id.)
Plaintiff indicates that he is "by no means challenging the legality of his conviction or length of his confinement . . . plaintiff's only claim in this action is that after the trial court ruled that plaintiff received a lawful conviction and a lawful sentence the defendant violated his sixth amendment and fourteenth amendment due process rights by [Defendant] failing to accurately transcribe from her steno-type machine the accurate phonogram tape so that a reviewing court could determine if the trial court made correct rulings in the proceedings." (Id.) Plaintiff no longer seeks monetary damages, as he did in the original Complaint, but merely requests the Court to order Defendant to produce the original tape from the transcription machine so that it can be transcribed by an independent certified court reporter. (Id. at 7.)
In order for Plaintiff to succeed on his claim that his federal constitutional rights were violated by the failure to accurately transcribe the sentencing proceedings so as to prevent a reviewing court from determining if the trial court erred in sentencing him, he would necessarily call into question the validity of his conviction or sentence. See United States v. Carrillo, 902 F.2d 1405, 1409-10 (9th Cir. 1990) (noting that although a criminal defendant has a right to a complete transcript of the trial proceedings, a federal constitutional violation does not arise unless the defendant can demonstrate prejudice), citing United States v. Anzalone, 886 F.2d 229, 232 (9th Cir. 1989) ("[A]ssuming there were omissions in the transcripts, appellant cannot prevail without a showing of specific prejudice."); see also Sutton v. Lash, 576 F.2d 738, 746 (7th Cir. 1978) (retrial is proper remedy for claimed loss of critical transcripts which preclude meaningful criminal appeal). Thus, if Plaintiff's federal constitutional rights were violated by the inaccurate transcript, the validity of his conviction and or sentence would necessarily be called into question. If, on the other hand, the alleged inaccuracies did not cause a due process violation with respect to his appeal, he has not stated a section 1983 claim upon which relief may be granted.
For all these reasons, the Court finds that Plaintiff's First Amended Complaint fails to state a section 1983 claim upon which relief may be granted because Plaintiff has not alleged that his sentence or conviction has been declared invalid within the meaning of Heck. The First Amended Complaint is therefore subject to dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(b) 1915A(b). Because it is now clear that Plaintiff is unable to cure the defect of pleading, the First Amended Complaint is DISMISSED without further leave amend. See Lopez, 203 F.3d at 1130-31. The dismissal is without prejudice to Plaintiff to present his claim in a separate civil rights action if and when he satisfies the Heck requirement.
II. Conclusion and Order
Based on the foregoing, IT IS ORDERED that:
Plaintiff's First Amended Complaint is DISMISSED without further leave to amend for failing to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(b)(ii) 1915A(b)(1). The dismissal is without prejudice to Plaintiff to present his claim in a separate civil rights action if and when he succeeds in satisfying the requirement set forth in Heck v. Humphrey. IT IS SO ORDERED.