1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER STEVEN BUTLER, Case No.: 3:23-cv-01402-RBM-JLB

CDCR #T-83516,

12

ORDER:

Plaintiff, 13 vs. (1) GRANTING MOTIONS TO 14

PROCEED IN FORMA PAUPERIS;

15 AND COUNTY OF SAN DIEGO, et al.,

16 Defendants. (2) DISMISSING COMPLAINT 17 PURUSANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) 18

19 [Docs. 4, 5] 20 21 On July 24, 2023, Plaintiff Christopher Steven Butler (“Plaintiff”), a state prisoner 22 proceeding pro se, filed a civil rights Complaint accompanied by a motion to proceed in 23 forma pauperis (“IFP”). (Docs. 1, 2.) On August 9, 2023, the Court denied Plaintiff’s 24 motion to proceed IFP because it did not contain the necessary financial information and 25 dismissed this action without prejudice. (Doc. 3.) Plaintiff has now filed two motions to 26 proceed IFP which contain the required financial information (“Motions to Proceed IFP”). 27 (Docs. 4, 5.) 28 / / / 1 I. MOTIONS TO PROCEED IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to prepay the 5 entire fee only if leave to proceed IFP is granted pursuant to 28 U.S.C. § 1915(a). See 6 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section 1915(a)(2) also 7 requires prisoners seeking leave to proceed IFP to submit a “certified copy of the trust fund 8 account statement (or institutional equivalent) for . . . the 6-month period immediately 9 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 10 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses 11 an initial payment of 20% of (a) the average monthly deposits in the account for the past 12 six months, or (b) the average monthly balance in the account for the past six months, 13 whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1) & (4). 14 The institution collects subsequent payments, assessed at 20% of the preceding month’s 15 income, in any month in which the account exceeds $10, and forwards those payments to 16 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). The plaintiff 17 remains obligated to pay the entire fee in monthly installments regardless of whether their 18 action is ultimately dismissed. Bruce v. Samuels, 577 U.S. 82, 84 (2016). 19 Plaintiff’s inmate trust account statement shows average monthly deposits of $16.97 20 and an average monthly balance of $22.42 over the 6-months prior to initiating this suit, 21 and an available balance of $0.00 at the time of filing. (Doc. 5 at 9–10.) 22 Therefore, the Court GRANTS Plaintiff’s Motions to Proceed IFP and declines to 23 impose an initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1) because his prison 24 certificate indicates he may have no means to pay it. See 28 U.S.C. § 1915(b)(4) (providing 25

26 27 1 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP, must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial 28 1 that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing 2 a civil action or criminal judgment for the reason that the prisoner has no assets and no 3 means by which to pay the initial partial filing fee.”); Taylor v. Delatoore, 281 F.3d 844, 4 850 (9th Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 5 dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of 6 funds available to him when payment is ordered.”) 7 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 8 A. Standard of Review 9 Because Plaintiff is a prisoner proceeding IFP, the Complaint requires a pre-answer 10 screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua sponte 11 dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails 12 to state a claim, or seeks damages from defendants who are immune. Lopez v. Smith, 203 13 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes 14 v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). 15 “The standard for determining whether a plaintiff has failed to state a claim upon 16 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 17 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 18 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 19 2012) (“Failure to state a claim under § 1915A incorporates the familiar standard applied 20 in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) 21 Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, 22 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 23 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 24 B. Plaintiff’s Allegations 25 Plaintiff names as Defendants three individuals and two entities involved in his 26 criminal conviction, including the prosecutor, San Diego County Assistant District 27 Attorney Thomas Manning (Defendant ADA Manning”), a testifying witness, San Diego 28 Police Department Detective Barry Vecchioni (“Defendant Vecchioni”), Plaintiff’s trial 1 counsel Mark A. Chambers (“Defendant Chambers”), the San Diego County District 2 Attorney’s Office Conviction Review Unit, and the County of San Diego. (Doc. 1 at 8–9.) 3 He alleges that on December 1, 2000, he was a passenger in a vehicle which was pulled 4 over and searched by Federal Bureau of Investigation (“FBI”) officers. (Id. at 10.) A black 5 BB gun found in the glove box was seized and logged into evidence as Exhibit 40 in San 6 Diego County Criminal Case No. SCN128327. (Id.) Several days later, the San Diego 7 County District Attorney’s Office filed a criminal complaint charging Plaintiff with three 8 counts of kidnap for ransom and one count each of conspiracy to kidnap, robbery, grand 9 theft auto and bank robbery. (Id. at 11.) Each count carried a firearm use enhancement. 10 (Id.) In March 2001, FBI Agent Higgins testified as a firearms expert before a San Diego 11 County Grand Jury, stating that he participated in the seizure of a “pellet-type” gun from a 12 vehicle’s glove box during Plaintiff’s arrest, which he identified as Exhibit 40. (Id.) Agent 13 Higgins testified that the gun resembled, and appeared to be when he first saw it, a real 45- 14 automatic pistol, and that it was such an extremely close copy that most people would 15 mistake it for a real gun. (Id. at 11–12.) 16 Plaintiff’s criminal jury trial began in May 2002, and during the prosecution’s case 17 in chief the prosecutor, Defendant ADA Manning, called Defendant Vecchioni to testify. 18 (Id. at 12.) Defendant Vecchioni initially testified that Exhibit 40 was a silver revolver, 19 but after a conference between Defendant ADA Manning and Defendant Vecchioni, 20 Defendant Vecchioni corrected himself and said the silver revolver was found in a shoe 21 box in Plaintiff’s bedroom. (Id. at 12–13.) Plaintiff claims Defendant ADA Manning 22 knowingly elicited false testimony from Defendant Vecchioni when they represented to the 23 jury that Exhibit 40, which was not a firearm, was the silver revolver, a real firearm. (Id.) 24 Additionally, Plaintiff alleges his defense counsel, Defendant Chambers, breached his 25 fiduciary duty by failing to challenge the admission of the silver revolver into evidence and 26 by failing to follow up on his assurance to Plaintiff that he would expose the false evidence 27 during closing argument. (Id.) Plaintiff claims the jury was deliberately misled to believe 28 the silver revolver was a firearm which they could rely on to find the firearm use 1 enhancements true, which added 30 years to his sentence, but which under state law they 2 could not have done with the BB gun. (Id. at 13–17.) It is Plaintiff’s position that the 3 introduction of the silver revolver was part of a conspiracy between Defendants ADA 4 Manning, Vecchioni and Chambers to violate his state and federal constitutional rights to 5 due process and to be free from false imprisonment. (Id. at 18–22.) 6 On June 14, 2021, Plaintiff filed an Application for Conviction Review to Defendant 7 San Diego District Attorney’s Office Conviction Review Unit contending he was innocent 8 of and wrongly convicted of the firearm use allegation. (Id. at 22–23.) The application 9 was denied based on a failure to present credible and verifiable evidence of innocence and 10 because Plaintiff had admitted taking part in the crimes during his appeals and parole 11 hearings. (Id. at 24.) Plaintiff claims that determination is erroneous because: (1) if his 12 appellate counsel admitted on appeal he was guilty of the firearm use allegation it 13 constitutes ineffective assistance of counsel, and (2) his parole hearing transcripts are silent 14 as to whether he admitted to possession of the silver revolver. (Id.) He claims that 15 Defendants County of San Diego, ADA Manning, Chambers, Vecchioni and the San Diego 16 District Attorney’s Office Conviction Review Unit violated his Fourteenth Amendment 17 right to equal protection pursuant to a custom and practice of those entities joining forces 18 to deprive African American males of their constitutional rights. (Id. at 24–25.) 19 C. Discussion 20 In order to establish liability under 42 U.S.C. § 1983, a plaintiff “must show both 21 (1) deprivation of a right secured by the Constitution and laws of the United States, and 22 (2) that the deprivation was committed by a person acting under color of state law.” Tsao 23 v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 24 Here, Plaintiff cannot state a § 1983 claim against his trial counsel Defendant 25 Chambers because counsel “does not act under color of state law when performing a 26 lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Polk 27 County v. Dodson, 454 U.S. 312, 325 (1981); Miranda v. Clark County, Nevada, 319 F.3d 28 465, 468 (9th Cir. 2003) (“It does not matter that [plaintiff’s counsel] was employed by a 1 public agency. . . . ‘the duties and obligations are the same whether [counsel] was privately 2 retained, appointed, or serving in a legal aid or defender program.’ In that traditional role, 3 . . . as a matter of law, he was not a state actor.”) (quoting Polk County, 454 U.S. at 318, 4 321). Neither is Plaintiff able to state a § 1983 against the prosecutor, Defendant ADA 5 Manning, with respect to allegations that he elicited false testimony or introduced false 6 evidence at trial. See Van de Kamp v. Goldstein, 555 U.S. 335, 341–42 (2009) (state 7 prosecutors are entitled to absolute prosecutorial immunity for acts taken in their official 8 capacity); Imbler v. Pachtman, 424 U.S. 409, 427, 430–31 (1976) (holding prosecutors 9 absolutely immune from civil suits for damages under § 1983 for initiating criminal 10 prosecutions and presenting cases); Torres v. Goddard, 793 F.3d 1046, 1051 (9th Cir. 11 2015) (“[C]riminal prosecutors may claim absolute immunity from damages liability for 12 actions ‘intimately associated with the judicial phase of the criminal process,’ such as the 13 prosecutor’s initiation of a prosecution and presentation of the state’s case.”) (quoting 14 Imbler, 424 U.S. at 430). 15 Plaintiff also fails to state a § 1983 claim against the remaining Defendants. There 16 are two methods for state prisoners to raise complaints in federal court related to their 17 imprisonment. See Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Federal law opens 18 two main avenues to relief on complaints related to imprisonment: a petition for habeas 19 corpus and a complaint under [§ 1983]”). In general, claims of constitutional violations 20 related to the “circumstances of confinement” must be brought in a civil rights action under 21 § 1983, see id., while constitutional challenges to the validity or duration of a prisoner’s 22 confinement must be raised in a petition for federal habeas corpus under 28 U.S.C. § 2254, 23 or through appropriate state relief. Wilkinson v. Dotson, 544 U.S. 74, 78–79 (2005) (“This 24 Court has held that a prisoner in state custody cannot use a § 1983 action to challenge ‘the 25 fact or duration of his confinement.’”) (quoting Preiser v. Rodriguez, 411 U.S. 475, 489 26 (1973)); see also Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc) (“The 27 Court has long held that habeas is the exclusive vehicle for claims brought by state 28 prisoners that fall within the core of habeas, and such claims may not be brought in a § 1983 1 action.”) (citing Wilkinson, 544 U.S. at 81–82 (“[A] state prisoner’s § 1983 action is barred 2 (absent prior invalidation) - no matter the relief sought (damages or equitable relief), no 3 matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison 4 proceedings[] - if success in that action would necessarily demonstrate the invalidity of 5 confinement or its duration.”)). “Suits challenging the validity of the prisoner’s continued 6 incarceration lie within ‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper 7 remedy for a state prisoner who is making a constitutional challenge to the conditions of 8 his prison life, but not to the fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 9 850, 856 (9th Cir. 2003) (quoting Preiser, 411 U.S. at 498–99). The Supreme Court has 10 stated: 11 We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm 12 caused by actions whose unlawfulness would render a conviction 13 or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, 14 expunged by executive order, declared invalid by a state tribunal 15 authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. 16 § 2254. A claim for damages bearing that relationship to a 17 conviction or sentence that has not been so invalidated is not cognizable under § 1983. 18 19 Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). 20 Because Plaintiff seeks damages based on alleged violations of his constitutional 21 rights to due process, effective assistance of counsel during his state court criminal 22 proceedings, and his claim of false imprisonment, he may not proceed pursuant to § 1983 23 unless he can show his conviction has already been invalidated. Id.; Ramirez, 334 F.3d at 24 855–56 (“Absent such a showing, ‘(e)ven a prisoner who has fully exhausted available 25 state remedies has no cause of action under § 1983.’”) (quoting Heck, 512 U.S. at 489). 26 This is because success on Plaintiff’s claims would necessarily imply the invalidity of his 27 conviction or sentence and consequently affect the duration of his confinement. See Heck, 28 512 U.S. at 486–87; see also Pattillo v. Lombardo, No. 2:17cv1849-JAD-VCF, 2017 WL 1 3622778, at *4 (D. Nev. Aug. 23, 2017) (“When a prisoner challenges the legality or 2 duration of his custody, raises a constitutional challenge which could entitle him to an 3 earlier release (such as ineffective assistance of counsel), or seeks damages for purported 4 deficiencies in his state court criminal case, which effected a conviction or lengthier 5 sentence, his sole federal remedy is the writ of habeas corpus.”) (citing Heck, 512 U.S at 6 481–82); Toney v. Ruiz, No. 3:10cv0405 BTM (PCL), 2010 WL 2383787, at *2 (S.D. Cal. 7 June 9, 2010) (noting that “ineffective assistance of counsel claims against [attorneys who 8 represented plaintiff during his criminal trial and subsequent appeal] ‘necessarily imply the 9 invalidity’ of [plaintiff’s] criminal proceedings and continuing incarceration.”) (citing 10 Heck, 512 U.S. at 487). 11 Because it is clear the conviction which forms the basis of this § 1983 suit has not 12 been invalidated by way of direct appeal, executive order, or through the issuance of either 13 a state or federal court writ of habeas corpus, Heck, 512 U.S. at 487, Plaintiff’s Complaint 14 must be dismissed sua sponte for failing to state a claim upon which § 1983 relief can be 15 granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). To the extent Plaintiff 16 intended to present state law claims, the Court declines to accept supplemental jurisdiction 17 over any such claims. See 28 U.S.C. § 1367(c) (the Court may “decline to exercise 18 supplemental jurisdiction” over any supplemental state law claim if it “has dismissed all 19 claims over which it has original jurisdiction.”); Sanford v. Member Works, Inc., 625 F.3d 20 550, 561 (9th Cir. 2010) (“[I]n the usual case in which all federal-law claims are eliminated 21 before trial, the balance of factors to be considered under the pendent jurisdiction doctrine 22 - judicial economy, convenience, fairness, and comity - will point toward declining to 23 exercise jurisdiction over the remaining state-law claims.”) 24 D. Leave to Amend 25 Finally, while the Court would typically grant Plaintiff leave to amend in light of his 26 pro se status, because it is absolutely clear Plaintiff cannot cure the pleading defects 27 identified above, the dismissal is without leave to amend. See Rosati v. Igbinoso, 791 F.3d 28 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint without 1 || leave to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not 2 || be cured by amendment.’’’) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)); 3 || Schmier v. U.S. Court of Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) 4 (recognizing “[fJutility of amendment” as a proper basis for dismissal without leave to 5 amend). 6 Ht. CONCLUSION 7 For the reasons set forth above, the Court: 8 1) GRANTS Plaintiffs Motions to Proceed IFP (Docs. 4, 5); 9 2) ORDERS the Secretary of the CDCR, or his designee, to collect from 10 || Plaintiffs prison trust account the $350 filing fee owed in this case by collecting monthly 11 payments from the account in an amount equal to twenty percent (20%) of the preceding 12 ||month’s income and forward payments to the Clerk of the Court each time the amount in 13 || the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2); 14 3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 15 ||on Jeff Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283- 16 0001, or by forwarding an electronic copy to trusthelpdesk @cdcr.ca.gov; 17 4) DISMISSES Plaintiff’s Complaint sua sponte in its entirety without leave to 18 amend based on a failure to state a claim upon which relief may be granted pursuant to 28 19 U.S.C. § 1915(e)(2) and § 1915A(b)(1). The Court certifies that any appeal would not be 20 taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). 21 IT IS SO ORDERED 22 ||DATE: September 14, 2023 act eee 74 HONYRUTH BERMUDEZ MONTENEGRO

UNITED STATES DISTRICT JUDGE

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