Opinion
No. C 01-2721 WHA (PR)
August 19, 2001
ORDER OF DISMISSAL (Doc 3)
Plaintiff, an inmate at the Sierra Conservation Center in Jamestown, has filed a pro se civil rights complaint under 42 U.S.C. § 1983.
DISCUSSION
A. Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief Id. at 1915A(b)(1), (2).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
B. Analysis
Plaintiff alleges that Dianne Quintero, who had formerly been in a relationship with Plaintiff and who was the complaining witness, gave testimony at trial which conflicted with her Family Court testimony. He also asserts that defendant Ayers, who represented Quintero in Family Court, filed a false declaration there; that defendant Gorley, the court reporter in Family Court, supplied a false or erroneous transcript; that defendant Ledet, his public defender, failed to defend him properly; and that defendant Nishigaya, the prosecutor, knowingly used false evidence. The relief he requests is "[a] criminal investigation of the family court transcript," that "charges [be] filed," and a "[n]ew trial with a State Public Defender[,] Stephanie Clarke."
To the extent plaintiff seeks to challenge either the fact or duration of his confinement — for instance via his request for a new trial — his sole remedy is to file a petition for writ of habeas corpus Preiser v. Rodriguez, 411 U.S. 475, 500 (1973), after he exhausts state judicial remedies, Granberry v. Greer, 481 U.S. 129, 134 (1987). Plaintiff's requests that the Court order a "criminal investigation" and that "charges [be] filed" are not actionable in a civil rights case. See United States v. Batchelder, 442 U.S. 114, 124 (1979) (whether to prosecute and what criminal charges to file or bring are decisions that generally rest in the prosecutor's, not the court's, discretion); Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (2d Cir. 1973) (prosecution of state officials for alleged violation of inmates' federal civil rights is for discretion of U.S. Attorney). Nor do criminal statutes generally provide a private cause of action or basis for civil liability. See, e.g., Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).
District courts must afford pro se prisoner litigants an opportunity to amend to correct any deficiency in their complaints, unless no amendment could save the complaint. See Lopez v. Smith, 203 F.3d 1122, 1127, 1129 (9th Cir. 2000) (en banc). Plaintiff could amend to request only damages, in an attempt to avoid the Preiser bar discussed above, but he would then fall afoul of the bar announced in Heck v. Humphrey, 114 S.Ct. 2364, 2372 (1994).
As Plaintiff's request for a new trial makes clear, the essence of his claim is that Defendants acted improperly to cause his conviction. The United States Supreme Court has held that to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 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.
When a state prisoner's section 1983 suit implicates the length of his or her incarceration, the complaint must be dismissed unless the plaintiff can demonstrate that the decision establishing the length of incarceration has already been invalidated. Id. If this Plaintiff were to amend to request only damages, a judgment in his favor would imply the invalidity of a state conviction which has not already been invalidated; therefore, such an amended complaint would still fail to state a cognizable claim under § 1983. For that reason, an amendment could not save this claim and the dismissal will be without leave to amend.
"[A] § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated." Heck, 114 S.Ct. at 2374 (footnote omitted). Plaintiff has not made a claim for damages here; the Court's discussion regarding such a hypothetical claim is solely for purposes of determining whether the dismissal should be with leave to amend. If Plaintiff succeeds in getting his conviction set aside by way of direct appeal or in a state or federal habeas action, a subsequent claim for damages would accrue when the conviction is set aside. This dismissal is not preclusive of any such claim.
Plaintiff also alleges claims under 42 U.S.C. § 241 and 242. The subject of 42 U.S.C. § 241 is scientific studies about "the causes, diagnosis, treatment, control, and prevention of physical and mental diseases and impairments of man. . . ." 42 U.S.C. § 242 relates to scientific studies about narcotic drugs. Nothing in the complaint has to do with these subjects. The complaint fails to state a claim under these sections, but his citation of them is obviously in error. It appears likely that Plaintiff is referring to 18 U.S.C. § 241 and 242, which are criminal statutes involving deprivations of civil rights. If so, he also has failed to state a claim under these statutes. See, e.g., Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) ( 18 U.S.C. § 241, 242 provide no private right of action and cannot form basis for civil suit); Pawelek v. Paramount Studios Corp., 571 F. Supp. 1082, 1083 (N.D. Ill. 1983) (no private cause of action inherent in federal criminal statutes defining civil rights violations). No amendment could cure this deficiency.
CONCLUSION
Leave to proceed in forma pauperis (doc 3) is DENIED. For the foregoing reasons plaintiff's complaint is DISMISSED without leave to amend.
The Clerk shall close the file.
JUDGMENT
The court has dismissed this prisoner in forma pauperis compliant without leave to amend. Judgment is entered in favor of defendants. Plaintiff shall take nothing by way of his complaint.