1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN MARK VAN DEN HEUVEL No. 2:19-cv-0883 MCE DB PS

A.K.A. JEAN MARC,

12 13 Plaintiff, ORDER 14 v. 15 EL DORADO COUNTY DISTRICT ATTORNEYS, et al., 16 17 Defendants. 18 19 Plaintiff, John Mark Van den Heuvel, is proceeding in this action pro se. This matter was 20 referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). 21 Pending before the court are plaintiff’s complaint and motion to proceed in forma pauperis 22 pursuant to 28 U.S.C. § 1915. (ECF Nos. 1 & 6.) Therein, plaintiff complains about a criminal 23 prosecution. 24 The court is required to screen complaints brought by parties proceeding in forma 25 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 26 2000) (en banc). Here, plaintiff’s complaint is deficient. Accordingly, for the reasons stated 27 below, plaintiff’s complaint will be dismissed with leave to amend. 28 //// 1 I. Plaintiff’s Application to Proceed In Forma Pauperis 2 Plaintiff’s in forma pauperis application makes the financial showing required by 28 3 U.S.C. § 1915(a)(1). However, a determination that a plaintiff qualifies financially for in forma 4 pauperis status does not complete the inquiry required by the statute. “‘A district court may deny 5 leave to proceed in forma pauperis at the outset if it appears from the face of the proposed 6 complaint that the action is frivolous or without merit.’” Minetti v. Port of Seattle, 152 F.3d 7 1113, 1115 (9th Cir. 1998) (quoting Tripati v. First Nat. Bank & Trust, 821 F.2d 1368, 1370 (9th 8 Cir. 1987)); see also McGee v. Department of Child Support Services, 584 Fed. Appx. 638 (9th 9 Cir. 2014) (“the district court did not abuse its discretion by denying McGee’s request to proceed 10 IFP because it appears from the face of the amended complaint that McGee’s action is frivolous 11 or without merit”); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“It is the duty of the 12 District Court to examine any application for leave to proceed in forma pauperis to determine 13 whether the proposed proceeding has merit and if it appears that the proceeding is without merit, 14 the court is bound to deny a motion seeking leave to proceed in forma pauperis.”). 15 Moreover, the court must dismiss an in forma pauperis case at any time if the allegation of 16 poverty is found to be untrue or if it is determined that the action is frivolous or malicious, fails to 17 state a claim on which relief may be granted, or seeks monetary relief against an immune 18 defendant. See 28 U.S.C. § 1915(e)(2). A complaint is legally frivolous when it lacks an 19 arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. 20 Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). Under this standard, a court must dismiss a 21 complaint as frivolous where it is based on an indisputably meritless legal theory or where the 22 factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; 28 U.S.C. § 1915(e). 23 To state a claim on which relief may be granted, the plaintiff must allege “enough facts to 24 state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 25 570 (2007). In considering whether a complaint states a cognizable claim, the court accepts as 26 true the material allegations in the complaint and construes the allegations in the light most 27 favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. 28 Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. United States, 915 F.2d 1242, 1245 1 (9th Cir. 1989). Pro se pleadings are held to a less stringent standard than those drafted by 2 lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need not accept as true 3 conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western 4 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 5 The minimum requirements for a civil complaint in federal court are as follows: 6 A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the grounds upon which the court’s 7 jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand 8 for judgment for the relief the pleader seeks. 9 Fed. R. Civ. P. 8(a). 10 II. Plaintiff’s Complaint 11 Here, plaintiff’s complaint is deficient in several respects. 12 A. Failure to State a Claim 13 The complaint fails to contain a short and plain statement of a claim showing that plaintiff 14 is entitled to relief. In this regard, the allegations found in the complaint are difficult to decipher. 15 The complaint makes vague and conclusory allegations about “[t]he testimonies of the #3 16 arresting officers,” “false intentful (sic) imprisonment by honorable Judge Kenneth J. Melikians,” 17 and a “license being wrongfully revoked[.]” (Compl. (ECF No. 1) at 5-6.) 18 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 19 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 20 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 21 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). “A pleading that offers ‘labels 22 and conclusions’ or ‘a formulaic recitation of the elements of cause of action will not do.’ Nor 23 does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual 24 enhancements.’” Ashcroft v. Iqbal, 556 U.S.662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 25 557). A plaintiff must allege with at least some degree of particularity overt acts which the 26 defendants engaged in that support the plaintiff’s claims. Jones, 733 F.2d at 649. 27 //// 28 //// 1 B. Prosecutorial Immunity 2 The complaint names four defendants—each of whom are prosecutors with the El Dorado 3 County District Attorney. (Compl. (ECF No. 1) at 3.) “Absolute immunity is generally accorded 4 to . . . prosecutors functioning in their official capacities.” Olsen v. Idaho State Bd. of Medicine, 5 363 F.3d 916, 922 (9th Cir. 2004). In this regard, “[a] state prosecutor is entitled to absolute 6 immunity from liability under § 1983 for violating a person’s federal constitutional rights when 7 he or she engages in activities ‘intimately associated with the judicial phase of the criminal 8 process.’” Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003) (quoting Imbler v. Pachtman, 9 424 U.S. 409, 430 (1976)). 10 Here, plaintiff may be attempting to allege a malicious prosecution claim. “Malicious 11 prosecution consists of initiating or procuring the arrest and prosecution of another under lawful 12 process, but from malicious motives and without probable cause . . . . The test is whether the 13 defendant was actively instrumental in causing the prosecution.” Sullivan v. County of Los 14 Angeles, 12 Cal.3d 710, 720 (Cal. 1974). To prevail on a § 1983 claim of malicious prosecution, 15 the plaintiff must show that the defendant prosecuted plaintiff: (1) with malice; (2) without 16 probable cause; and (3) “‘[f]or the purpose of denying [plaintiff] equal protection or another 17 specific constitutional right.’” Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) 18 (quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)); see also Lassiter v. 19 City of Bremerton, 556 F.3d 1049, 1054-55 (9th Cir. 2009) (“[p]robable cause is an absolute 20 defense to malicious prosecution”). “Further, because the state tort common law has been 21 incorporated into the elements of a § 1983 malicious prosecution claim, a plaintiff must generally 22 show that the prior prosecution terminated in a manner that indicates innocence, i.e. a favorable 23 termination.” Mazzetti v. Bellino, 57 F.Supp.3d 1262, 1268 (E.D. Cal. 2014) (citing Awabdy, 24 368 F. 3d at 1066-68). 25 C. Judicial Immunity 26 As noted above, the complaint refers to “the false intentful (sic) imprisonments by 27 honorable Judge Kenneth J. Melikains[.]” (Compl. (ECF No. 1) at 5.) Plaintiff is advised that 28 judges are absolutely immune from suit for acts performed in a judicial capacity. See Antoine v. 1 Byers & Anderson, Inc., 508 U.S. 429, 435 & n.10 (1993); Mireles v. Waco, 502 U.S. 9, 11 2 (1991); Stump v. Sparkman, 435 U.S. 349, 357-60 (1978); Ashelman v. Pope, 793 F.2d 1072, 3 1075 (9th Cir. 1986) (en banc) (“Judges are immune from damage actions for judicial acts taken 4 within the jurisdiction of their courts.”). 5 D. Heck Bar and Rooker-Feldman 6 Plaintiff’s complaint makes vague reference to various state court criminal proceedings. 7 Plaintiff is advised that in Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme 8 Court held that a plaintiff may not prevail on § 1983 claim if doing so “would necessarily imply 9 the invalidity” of plaintiff’s conviction arising out of the same underlying facts as those at issue in 10 the civil action “unless the plaintiff can demonstrate that the conviction or sentence has already 11 been invalidated.” 512 U.S. at 487. Thus, “Heck says that ‘if a criminal conviction arising out of 12 the same facts stands and is fundamentally inconsistent with the unlawful behavior for which 13 section 1983 damages are sought, the 1983 action must be dismissed.’” Smith v. City of Hemet, 14 394 F.3d 689, 695 (9th Cir. 2005) (quoting Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 15 1996)). “Consequently, ‘the relevant question is whether success in a subsequent § 1983 suit 16 would ‘necessarily imply’ or ‘demonstrate’ the invalidity of the earlier conviction or sentence[.]” 17 Beets v. County of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012) (quoting Smithart, 79 F.3d 18 at 951). 19 Additionally, under the Rooker-Feldman doctrine a federal district court is precluded from 20 hearing “cases brought by state-court losers complaining of injuries caused by state-court 21 judgments rendered before the district court proceedings commenced and inviting district court 22 review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 23 U.S. 280, 284 (2005). The Rooker-Feldman doctrine applies not only to final state court orders 24 and judgments, but to interlocutory orders and non-final judgments issued by a state court as well. 25 Doe & Assoc. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001); Worldwide 26 Church of God v. McNair, 805 F.2d 888, 893 n. 3 (9th Cir. 1986). 27 The Rooker-Feldman doctrine prohibits “a direct appeal from the final judgment of a state 28 court,” Noel v. Hall, 341 F.3d 1148, 1158 (9th Cir. 2003), and “may also apply where the parties 1 do not directly contest the merits of a state court decision, as the doctrine prohibits a federal 2 district court from exercising subject matter jurisdiction over a suit that is a de facto appeal from a 3 state court judgment.” Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 859 (9th Cir. 2008) 4 (internal quotation marks omitted). “A suit brought in federal district court is a ‘de facto appeal’ 5 forbidden by Rooker-Feldman when ‘a federal plaintiff asserts as a legal wrong an allegedly 6 erroneous decision by a state court, and seeks relief from a state court judgment based on that 7 decision.’” Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2010) (quoting Noel, 341 F.3d 8 at 1164); see also Doe v. Mann, 415 F.3d 1038, 1041 (9th Cir. 2005) (“[T]he Rooker-Feldman 9 doctrine bars federal courts from exercising subject-matter jurisdiction over a proceeding in 10 ‘which a party losing in state court’ seeks ‘what in substance would be appellate review of the 11 state judgment in a United States district court, based on the losing party’s claim that the state 12 judgment itself violates the loser’s federal rights.’”) (quoting Johnson v. De Grandy, 512 U.S. 13 997, 1005-06 (1994), cert. denied 547 U .S. 1111 (2006)). “Thus, even if a plaintiff seeks relief 14 from a state court judgment, such a suit is a forbidden de facto appeal only if the plaintiff also 15 alleges a legal error by the state court.” Bell v. City of Boise, 709 F.3d 890, 897 (9th Cir. 2013). 16 [A] federal district court dealing with a suit that is, in part, a forbidden de facto appeal from a judicial decision of a state court 17 must refuse to hear the forbidden appeal. As part of that refusal, it must also refuse to decide any issue raised in the suit that is 18 ‘inextricably intertwined’ with an issue resolved by the state court in its judicial decision. 19 20 Doe, 415 F.3d at 1043 (quoting Noel, 341 F.3d at 1158); see also Exxon, 544 U.S. at 286 n. 1 (“a 21 district court [cannot] entertain constitutional claims attacking a state-court judgment, even if the 22 state court had not passed directly on those claims, when the constitutional attack [is] 23 ‘inextricably intertwined’ with the state court’s judgment”) (citing Feldman, 460 U.S. at 482 n. 24 16)); Bianchi v. Rylaarsdam, 334 F.3d 895, 898, 900 n. 4 (9th Cir. 2003) (“claims raised in the 25 federal court action are ‘inextricably intertwined’ with the state court’s decision such that the 26 adjudication of the federal claims would undercut the state ruling or require the district court to 27 interpret the application of state laws or procedural rules”) (citing Feldman, 460 U.S. at 483 n. 16, 28 485). 1 III. Leave to Amend 2 For the reasons stated above, plaintiff’s complaint must be dismissed. The undersigned 3 has carefully considered whether plaintiff may amend the complaint to state a claim upon which 4 relief can be granted. “Valid reasons for denying leave to amend include undue delay, bad faith, 5 prejudice, and futility.” California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 6 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 7 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the 8 court does not have to allow futile amendments). 9 However, when evaluating the failure to state a claim, the complaint of a pro se plaintiff 10 may be dismissed “only where ‘it appears beyond doubt that the plaintiff can prove no set of facts 11 in support of his claim which would entitle him to relief.’” Franklin v. Murphy, 745 F.2d 1221, 12 1228 (9th Cir. 1984) (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972)); see also Weilburg v. 13 Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to 14 amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be 15 cured by amendment.”) (quoting Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 16 1988)). 17 Here, given the vague and conclusory nature of the complaint’s allegations, the 18 undersigned cannot yet say that it appears beyond doubt that leave to amend would be futile. 19 Plaintiff’s complaint will therefore be dismissed, and plaintiff will be granted leave to file an 20 amended complaint. Plaintiff is cautioned, however, that if plaintiff elects to file an amended 21 complaint “the tenet that a court must accept as true all of the allegations contained in a complaint 22 is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, 23 supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678. “While 24 legal conclusions can provide the complaint’s framework, they must be supported by factual 25 allegations.” Id. at 679. Those facts must be sufficient to push the claims “across the line from 26 conceivable to plausible[.]” Id. at 680 (quoting Twombly, 550 U.S. at 557). 27 Plaintiff is also reminded that the court cannot refer to a prior pleading in order to make an 28 amended complaint complete. Local Rule 220 requires that any amended complaint be complete 1 in itself without reference to prior pleadings. The amended complaint will supersede the original 2 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in an amended complaint, 3 just as if it were the initial complaint filed in the case, each defendant must be listed in the caption 4 and identified in the body of the complaint, and each claim and the involvement of each 5 defendant must be sufficiently alleged. Any amended complaint which plaintiff may elect to file 6 must also include concise but complete factual allegations describing the conduct and events 7 which underlie plaintiff’s claims. 8 CONCLUSION 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. The complaint filed May 16, 2019 (ECF No. 1) is dismissed with leave to 11 amend.1 12 2. Within twenty-eight days from the date of this order, an amended complaint shall be 13 filed that cures the defects noted in this order and complies with the Federal Rules of Civil 14 Procedure and the Local Rules of Practice.2 The amended complaint must bear the case number 15 assigned to this action and must be titled “Amended Complaint.” 16 3. Failure to comply with this order in a timely manner may result in a recommendation 17 that this action be dismissed. 18 DATED: October 16, 2019 /s/ DEBORAH BARNES

UNITED STATES MAGISTRATE JUDGE

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1 Plaintiff need not file another application to proceed in forma pauperis at this time unless 26 plaintiff’s financial condition has improved since the last such application was submitted. 27 2 Alternatively, if plaintiff no longer wishes to pursue this action plaintiff may file a notice of 28 voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil Procedure.