1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MAXWELL JOELSON, and JUAN Case No.: 20-CV-1568 TWR (KSC) VALDEZ, on behalf of all others similarly 12 situated, ORDER (1) GRANTING MOTIONS 13 TO PROCEED IN FORMA Plaintiff,

PAUPERIS, AND (2) DISMISSING

14 v. WITHOUT PREJUDICE 15 COMPLAINT

UNITED STATES OF AMERICA,

16 Defendant. (ECF Nos. 2, 3) 17

18 Presently before the Court are the Motions to Proceed in Forma Pauperis (“IFP”) 19 filed by Plaintiffs Maxwell Joelson (“Joelson Mot.,” ECF No. 2) and Juan Valdez (“Valdez 20 Mot.,” ECF No. 3). On August 13, 2020, Plaintiffs, proceeding pro se, filed a putative 21 class action against Defendant the United States of America, alleging nineteen causes of 22 action concerning alleged misconduct in the post-trial and habeas process by federal 23 prosecutors and judges. (See generally ECF No. 1 (“Compl.”).) 24 MOTIONS TO PROCEED IN FORMA PAUPERIS 25 All parties instituting any civil action, suit, or proceeding in a district court of the 26 United States, except an application for a writ of habeas corpus, must pay filing and 27 / / / 28 / / / 1 administration fees totaling $400. 28 U.S.C. § 1914(a). A court may, however, in its 2 discretion, allow a plaintiff to proceed without paying these fees if the plaintiff seeks leave 3 to proceed IFP by submitting an affidavit demonstrating the fees impose financial hardship. 4 See 28 U.S.C. § 1915(a); Escobeda v. Applebees, 787 F.3d 1226, 1234 (2015). Although 5 the statute does not specify the qualifications for proceeding IFP, the plaintiff’s affidavit 6 must allege poverty with some particularity. Escobeda, 787 F.3d at 1234. Granting a 7 plaintiff leave to proceed IFP may be proper, for example, when the affidavit demonstrates 8 that paying court costs will result in a plaintiff’s inability to afford the “necessities of life.” 9 Id. The affidavit, however, need not demonstrate that the plaintiff is destitute. Id. 10 Both Plaintiff Joelson and Plaintiff Valdez claim no monthly income, no monthly 11 expenses, and no assets or savings. (See generally Joelson Mot.; Valdez Mot.) Following 12 lengthy terms of imprisonment, both report that they are living with their sons, who are 13 paying for their necessities. (See Joelson Mot. at 5; Valdez Mot. at 5.) The Court therefore 14 concludes that Plaintiffs’ applications demonstrate they are unable to pay the requisite fees 15 and costs. Accordingly, the Court GRANTS both the Joelson Motion (ECF No. 2) and the 16 Valdez Motion (ECF No. 3). 17 SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 18 I. Standard of Review 19 The Court must screen every civil action brought pursuant to 28 U.S.C. § 1915(a) 20 and dismiss any case it finds “frivolous or malicious,” “fails to state a claim on which relief 21 may be granted,” or “seeks monetary relief against a defendant who is immune from relief.” 22 28 U.S.C. § 1915(e)(2)(B); see also Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) 23 (“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. 24 Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. 28 June 1, 2016)). The additional $50 administrative fee does not apply to persons granted leave to proceed 1 “not only permits but requires a district court to dismiss an in forma pauperis complaint 2 that fails to state a claim”). As amended by the Prison Litigation Reform Act (“PLRA”), 3 28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to the 4 IFP provisions of section 1915 make and rule on its own motion to dismiss before directing 5 the Marshal to effect service pursuant to Federal Rule of Civil Procedure 4(c)(3). See Fed. 6 R. Civ. P. 4(c)(3); Navarette v. Pioneer Med. Ctr., No. 12-cv-0629-WQH (DHB), 2013 7 WL 139925, at *1 (S.D. Cal. Jan. 9, 2013). 8 All complaints must contain a “short and plain statement of the claim showing that 9 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 10 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 11 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 12 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). “[D]etermining whether a 13 complaint states a plausible claim is context-specific, requiring the reviewing court to draw 14 on its experience and common sense.” Iqbal, 556 U.S. at 663–64 (citing Twombly, 550 15 U.S. at 556). 16 “When there are well-pleaded factual allegations, a court should assume their 17 veracity, and then determine whether they plausibly give rise to an entitlement of relief.” 18 Iqbal, 556 U.S. at 679. “[W]hen determining whether a complaint states a claim, a court 19 must accept as true all allegations of material fact and must construe those facts in the light 20 most favorable to the plaintiff.” Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see 21 also Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005); Barren v. Harrington, 152 22 F.3d 1193, 1194 (9th Cir. 1998) (“The language of § 1915(e)(2)(B)(ii) parallels the 23 language of Federal Rule of Civil Procedure 12(b)(6).”). 24 “While factual allegations are accepted as true, legal conclusions are not.” Hoagland 25 v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 28, 2012) 26 (citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth in a 27 complaint if the plaintiff has not supported her contentions with facts. Id. (citing Iqbal, 28 556 U.S. at 679). 1 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim- 2 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). In giving liberal 3 interpretation to a pro se complaint, however, a court may not “supply essential elements 4 of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 5 F.2d 266, 268 (9th Cir. 1982). The district court should grant leave to amend if it appears 6 “at all possible that the plaintiff can correct the defect,” unless the court determines that 7 “the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 8 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (citing Doe v. United States, 58 F.3d 9 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 701 (9th Cir. 10 1990)). 11 II. Analysis 12 Plaintiffs, former federal inmates, filed this putative class action, asserting nineteen 13 causes of action against the United States (including several individual Assistant United 14 States Attorneys2; the then-Acting United States Solicitor General, Neal K. Katyal; and 15 federal Magistrate,3 District,4 and Circuit judges5) for alleged misdeeds during the post- 16 trial and habeas process that allegedly resulted in Plaintiffs’ prolonged detention. (See 17 generally Compl.) Plaintiffs therefore seek compensatory damages in the amount of $50 18 million and declaratory and injunctive relief. (See Compl. at Prayer ¶¶ 2–4; ECF No. 1-1.) 19

20 2 Gonzalo P. Curiel, Eileen M. Decker, Tim Laske, Daniel Levin, Amanda Liskamm, Lawrence S. 21 Middleton, Anne Carley Palmer, Richard L. Pomeroy, Steven E. Skrock, and E. Bryant Wilson. (See Compl. at ii, ¶ 87.) 22 3 Sheila K. Oberto and Jennifer L. Thurston. (See Compl. at ii.) 23

24 4 Timothy M. Burgess, Cormac J. Carney, Andrew J. Feess, Andrew J. Guilford, Lawrence J. O’Neill, Virginia A. Phillips, James K. Singleton, David W. Williams. (See Compl. at ii.) 25 5 James R. Browning; Jay B. Bybee; Consuelo M. Callahan; William C. Canby, Jr.; Richard R. Clifton; 26 Joseph Jerome Farris; Raymond C. Fisher; William A. Fletcher; Michelle T. Friedland; Alfred T. Goodwin; Ronald M. Gould; Susan P. Graber; Michael Daly Hawkins; Andrew J. Kleinfeld; Alex 27 Kozinski; Edward Leavy; Margaret M. McKeown; John B. Owens; Richard A. Paez; Johnnie B. 28 Rawlinson; Pamela Ann Rymer; Mary M. Schroeder; Barry G. Silverman; N. Randy Smith; Richard C. 1 Plaintiffs’ claims are subject to dismissal as asserted against Defendants immune 2 from liability and by Heck v. Humphrey, 512 U.S. 477 (1994). 3 A. Immunity 4 Plaintiffs’ claims are predicated on the actions of federal prosecutors and judges. 5 Because these actors are immune from liability, Plaintiffs fail to state a viable claim. 6 1. Prosecutorial Immunity 7 “Prosecutorial immunity protects eligible government officials when they are acting 8 pursuant to their official role as advocate for the state, performing functions ‘intimately 9 associated with the judicial phase of the criminal process.’” Nix v. United States, No. 2:18- 10 CV-01147-RHW, 2019 WL 77437, at *5 (W.D. Wash. Jan. 2) (quoting Imbler v. 11 Pachtman, 424 U.S. 409, 429–30 (1976)), appeal dismissed sub nom. Nix v. Lasnik, No. 12 19-35022, 2019 WL 7565461 (9th Cir. June 17, 2019). “Attorneys who prosecute cases 13 on behalf of the Government are absolutely immune from claims based on their 14 participation in the judicial process.” Id. (citing Imbler, 424 U.S. at 422–23). “The 15 following activities have been found to be intimately connected with the judicial phase of 16 the criminal process: seeking a grand jury indictment, dismissing claims, deciding whether 17 and when to prosecute . . . ; making statements that are alleged misrepresentations and 18 mischaracterizations during hearings, during discovery, and in court papers . . . ; and 19 preparing a case for trial.” Id. (citing (Milstein v. Cooley, 257 F.3d 1004, 1008, 1012 (9th 20 Cir. 2001); Fry v. Melaragno, 939 F.2d 832, 837–38 (9th Cir. 1991)). “A prosecutor also 21 enjoys absolute immunity from a suit alleging that he maliciously initiated prosecution, 22 used perjured testimony at trial, and suppressed material evidence at trial.” Id. (citing 23 Imbler, 424 U.S. at 430). 24 Broadly speaking, Plaintiffs allege that Assistant U.S. Attorneys, their supervisors, 25 and the then-Acting Solicitor General illegally omitted, concealed, misled, misrepresented, 26 and failed to disclose facts during the post-trial and habeas judicial review of their cases. 27 (See Compl. ¶¶ 51–52, 62–63, 68, 72–73, 75–76, 83–84, 88, 90, 92–94, 96, 98–99, 28 101–102, 104–05, 108, 111–12, 115–16, 119–21, 125, 134, 138, 140.) Although Plaintiffs 1 allege that these Defendants engaged in “ultra-vires conduct,” (see, e.g., id. ¶ 42), they 2 also allege that they were “acting in the course and scope of their official capacities,” (see, 3 e.g., id. ¶ 41), and their claims are predicated on Defendants’ actions in “plaintiffs’ post- 4 trial and post-habeas processes.” (See, e.g., id. ¶ 1.) Because the prosecutorial Defendants’ 5 alleged misdeeds occurred in the course of their duties in the prosecution of Plaintiffs, the 6 prosecutorial Defendants are absolutely immune from Plaintiffs’ claims. See, e.g., Nix, 7 2019 WL 77437, at *5; see also Hubbard v. Gipson, No. 1:14-CV-00042-AWI, 2014 WL 8 5324288, at *5 (E.D. Cal. Oct. 17) (dismissing claims against the Federal Bureau of 9 Investigation, Department of Justice, and Solicitor General as barred by prosecutorial 10 immunity) (collecting cases), report and recommendation adopted, 2014 WL 6608341 11 (E.D. Cal. Nov. 17, 2014). 12 2. Judicial Immunity 13 “Under the doctrine of absolute judicial immunity, a judge is not liable for monetary 14 damages for acts performed in the exercise of his judicial functions.” Nix, 2019 WL 77437, 15 at *4 (citing Stump v. Sparkman, 435 U.S. 349, 356 (1978); Ashelman v. Pope, 793 F.2d 16 1072, 1075 (9th Cir. 1986)). “An act is ‘judicial’ when it is a function normally performed 17 by a judge and the parties dealt with the judge in his judicial capacity.” Id. (citing 18 Sparkman, 435 U.S. at 362; Crooks v. Maynard, 913 F.2d 699, 700 (9th Cir. 1990)). “A 19 judge does not forfeit the benefit of judicial immunity because his action was in error, was 20 done maliciously, or was in excess of the judge’s authority.” Id. (citing Sparkman, 435 21 U.S. at 356). “The doctrine of absolute immunity also protects judges from allegations of 22 conspiracy.” Id. (citing Ashelman, 793 F.2d at 1075). 23 Judicial “immunity is overcome in only two sets of circumstances.” Mireles v. 24 Waco, 502 U.S. 9, 11–12 (1991). “First, a judge is not immune from liability for 25 nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity.” Id. (citing 26

27 6 Ultra vires means “beyond the legal powers or authority (of a person, etc. . . .).” Oxford English 28 Dictionary (2d ed. 1989), available at https://www.oed.com/view/Entry/208683?redirectedFrom= 1 Forrester v. White, 484 U.S. 219, 227–229 (1988); Stump v. Sparkman, 435 U.S. 349, 360 2 (1978)). “Second, a judge is not immune for actions, though judicial in nature, taken in the 3 complete absence of all jurisdiction.” Id. (citing Stump, 435 U.S. at 356–57; Bradley v. 4 Fisher, 80 U.S. 335, 351 (1871)). 5 Here, Plaintiffs allege that the judges overseeing their post-trial and habeas 6 proceedings accepted the misleading statements of the Assistant U.S. Attorneys, thereby 7 conspiring with the Government and ignoring and disregarding their own judicial 8 obligations. (See Compl. ¶¶ 54–57, 62–63, 70, 77–79, 90, 96, 98, 102, 115–16, 119–21, 9 125, 140.) These allegations relate to the judicial Defendants’ judicial functions, and there 10 are no allegations indicating that the judges’ actions were nonjudicial or that they acted “in 11 the complete absence of all jurisdiction” such that judicial immunity would not apply. 12 Because Plaintiffs’ causes of action against the judicial Defendants are based on their 13 rulings in Plaintiffs’ post-trial and habeas proceedings, the judicial Defendants are 14 absolutely immune from Plaintiffs’ claims. See, e.g., Nix, 2019 WL 77437, at *4. 15 B. Heck Doctrine 16 “A plaintiff’s claim for damages is not cognizable under 42 U.S.C. § 1983 or Bivens 17 if a judgment in favor of the plaintiff would necessarily imply the invalidity of his 18 conviction or sentence, unless the plaintiff demonstrates that the conviction or sentence has 19 previously been reversed, expunged, or invalidated.” Nix, 2019 WL 77437, at *5 (citing 20 Heck, 512 U.S. at 486; Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996)). “This bar also 21 extends to claims for declaratory relief.” Id. (citing Edwards v. Balisok, 520 U.S. 641, 22 647–48 (1997)). 23 Neither Plaintiff alleges that his conviction was reversed on appeal or called into 24 question by the issuance of a writ of habeas corpus. Indeed, Plaintiffs’ claims are premised 25 on their inability to obtain the relief they sought in post-trial and habeas proceedings. (See 26 Compl. ¶¶ 19–28, 32, 34–40.) “It is clear that Plaintiff[s’] claims against these Federal 27 judges and prosecutors are premised on [their] belief that [they were] wrongly prosecuted 28 and convicted in [their] underlying criminal case[s].” See Nix, 2019 WL 77437, at *6. 1 “Grant of Plaintiff[s’] claims for relief by this Court would most certainly invalidate 2 Plaintiff[s’] . . . criminal conviction[s;] as such, [their] claims are barred by Heck.” See id. 3 C. Leave to Amend 4 Although the Court questions whether Plaintiffs can cure the above-enumerated 5 deficiencies, in light of Plaintiffs’ pro se status, the Court GRANTS them leave to amend 6 their Complaint. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district 7 court should not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. 8 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint could 9 not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 10 2012)). 11 CONCLUSION 12 In light of the foregoing, the Court: 13 1. GRANTS Plaintiffs’ Motions to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 14 (ECF Nos. 2, 3); and 15 2. DISMISSES WITHOUT PREJUDICE Plaintiffs’ Complaint. Plaintiffs 16 MAY FILE an amended complaint on or before thirty (30) days from the date of this 17 Order. Any amended complaint must be complete by itself without reference to his original 18 pleading, and any Defendants not named and any claim not re-alleged in Plaintiffs’ 19 amended complaint will be considered waived. See S.D. Cal. Civ. L.R. 15.1; Hal Roach 20 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n 21 amended pleading supersedes the original.”); see also Lacey v. Maricopa Cty., 693 F.3d 22 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend that are not re- 23 alleged in an amended pleading may be “considered waived”). Should Plaintiffs fail to file 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 ||an amended complaint within the time provided, the Court may enter a final order 2 || dismissing without prejudice this civil action for failure to prosecute. 3 IT IS SO ORDERED. 4 Dated: November 3, 2020 | 9) (2 re Honorable Todd W. Robinson ] United States District Court 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28