KENDALL J. NEWMAN

ORDER

Plaintiff, presently housed in the Placer County Jail, is proceeding without counsel. Plaintiff filed a civil rights action pursuant to 42 U.S.C. § 1983, together with a request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).

Application to Proceed In Forma Pauperis

Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

Screening Standards

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("a judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin, 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic, 550 U.S. at 555. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

Plaintiff's Complaint

On or about July 28, 2011, a hearing was held in Placer County Superior Court, in which a "lifetime restraining order against plaintiff, protecting defendant Wright and Hyland Chaz Wright Oliver," plaintiff's minor child, was granted. (ECF No. 1 at 14, 21.) Plaintiff claims that service of process of the restraining order was defective, and that the restraining order was obtained against him based on false evidence. Plaintiff also alleges that he was arrested and incarcerated based on false statements contained in a police report. He further alleges that he was subjected to false arrest, prosecutorial misconduct, and malicious prosecution. He names as defendants the district attorney of Placer County, two deputy district attorneys, an investigator with Placer County, and the alleged victim, Shelley L. Wright, who appears to be the mother of the minor child. Plaintiff seeks monetary damages, and unspecified injunctive relief "related to an ongoing violation of his rights in Case 62-112215," which appears to be the Placer County action in which the restraining order was issued. (ECF No. 1 at 26.)

Analysis

Plaintiff's complaint is deficient in several respects. It is apparent from the complaint that plaintiff challenges orders issued by state court judges relating to a restraining order issued in connection with plaintiff's minor child and the child's mother, as well as the attendant prosecution of charges connected therewith. "Even with a federal question is presented, federal courts decline to hear disputes which would deeply involve them in adjudicating domestic matters." Thompson v. Thompson, 798 F.2d 1547, 1558 (9th Cir. 1986). Moreover, while federal courts have an obligation to exercise jurisdiction where it exists, particularly in civil rights cases, abstention may be required under the decision in Younger v. Harris, 401 U.S. 37 (1971), when there are ongoing state judicial proceedings implicating important state interests and there is adequate opportunity in the state proceedings to raise federal questions. Confederated Salish v. Simonich, 29 F.3d 1398, 1405 (9th Cir. 1994). State judicial proceedings involving domestic relations clearly implicate important state interests. Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) (holding that the domestic relations exception to federal subject matter jurisdiction "divests the federal courts of power to issue divorce, alimony and child custody decrees); Coats v. Woods, 819 F.2d 236, 237 (9th Cir. 1987) (affirming abstention where the case raised constitutional issues but was "at its core a child custody dispute"); Peterson v. Babbitt, 708 F.2d 465, 466 (9th Cir. 1983) (finding abstention appropriate despite the presence of constitutional issues where the plaintiff sought visitation with children who were wards of the state court)

Furthermore, under the Rooker-Feldman doctrine, federal district courts lack jurisdiction to review alleged errors in state court decisions. Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983) (holding that review of state court determinations can be obtained only in the United States Supreme Court). The doctrine applies to "cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). "The purpose of the doctrine is to protect state judgments from collateral federal attack." Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001). Pursuant to this doctrine, a federal district court is prohibited from exercising subject matter jurisdiction over a suit that is "a de facto appeal" from a state court judgment. Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004). A federal district court may not examine claims that are inextricably intertwined with state court decisions, "even where the party does not directly challenge the merits of the state court's decision but rather brings an indirect challenge based on constitutional principles." Bianchi v. Rylaarsdam, 334 F.3d 895, 900 n.4 (9th Cir. 2003). "A number of courts have held that the Rooker-Feldman doctrine ... bars federal court review of final state divorce decrees." See In re Schwartz, 409 B.R. 240, 248 (1st Cir. BAP 2008) (citing Davis v. United States, 499 F.3d 590, 595 (6th Cir. 2007); see also Ignacio v. Judges of U.S. Court of Appeals, 453 F.3d 1160, 1165-66 (9th Cir. 2006) (affirming district court's dismissal of the case "because the complaint is nothing more than another attack on the California superior court's determination in [plaintiff's] domestic case").

Finally, "[r]es judicata bars a suit when 'a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.'" ProShipLine Inc. v. Aspen Infrastructures Ltd., 609 F.3d 960, 968 (9th Cir. 2010) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980). Res judicata is applicable "when there is '(1) an identity of claims; (2) a final judgment on the merits; and (3) identity or privity between parties.'" ProShipLine Inc., 609 F.3d at 968 (quoting Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002)).

Here, plaintiff alleges multiple improprieties related to a restraining order concerning plaintiff's minor child. Stripped to its essence, this action is one for federal court review of state court proceedings. The court finds the instant action amounts to an attempt to litigate in federal court matters that are inextricably intertwined with state court decisions. Accordingly, the court will recommend this action be dismissed for lack of subject matter jurisdiction under Rooker-Feldman.

To the extent that plaintiff seeks injunctive relief based on rulings by the Placer County court, such claims are unavailing in this action. It appears that there are ongoing state judicial proceedings involving plaintiff that implicate an important state interest, and that provide plaintiff an adequate opportunity to raise federal questions. Plaintiff claims that on or about August 23, 2013, plaintiff's defense counsel filed a motion to void the restraining order, and on August 29, 2013, the state court ordered defendant Deslaurier to answer. (ECF No. 1 at 19.) Plaintiff states that his motion to disqualify the assigned judge was to be set for hearing on October 4, 2013. (ECF No. 1 at 19.) It also appears that plaintiff was ordered held without bail in the Placer County Jail for "violation of probation." Oliver v. Superior Court of the State of California for the County of Placer, et al., Case No. 2:12-cv-2705 KJM DAD PS ((ECF No. 27 at 7.)

Moreover, plaintiff's claim that he was the subject of false arrest and malicious prosecution are likely barred under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). When an inmate seeks monetary damages for alleged unconstitutional conviction or imprisonment in a section 1983 suit, he must first show that the conviction or sentence has been overturned on direct appeal or collateral review. Id. If the conviction or sentence has not been overturned, and a favorable judgment would "necessarily imply the invalidity" of that conviction or sentence, then the inmate's civil rights lawsuit must be dismissed. Id. at 487. Because it appears that plaintiff's conviction has not been overturned, and a favorable judgment in this case would imply the invalidity of that conviction, this case must be dismissed.

If plaintiff wishes to challenge the validity of his sentence or conviction in federal court, his sole remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied, 493 U.S. 1126 (1991). Before plaintiff may bring a federal habeas corpus action, however, he must first exhaust his remedies in state court. See Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971), Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986).

Finally, the court notes that plaintiff has filed similar cases in this court. In Oliver v. Superior Court of California, et al., Case No. 2:12-cv-2388 GEB DAD PS, plaintiff challenged an April 19, 2011 finding by the Placer County Superior Court that plaintiff violated a family court civil restraining order. Id., ECF No. 43. Plaintiff's complaint was dismissed without leave to amend based on Rooker-Feldman doctrine and the Younger abstention doctrine. Case No. 2:12-cv-2388 (ECF Nos. 43; 45.) Moreover, on June 10, 2013, in Oliver v. Placer Superior Court ex rel. Placer County, Case No. 2:12-cv-2665 GEB GGH PS, the magistrate judge found that the court "should abstain from adjudicating this case related to domestic relations" (ECF No. 53), and granted the Placer County district attorney's motion to dismiss on grounds of res judicata and prosecutorial immunity. The court noted that even charges of malicious prosecution, falsification of evidence, coercion of perjured testimony and concealment of exculpatory evidence will be dismissed on grounds of prosecutorial immunity. See Stevens v. Rifkin, 608 F.Supp. 710, 728 (N.D. Cal. 1984). Case No. 2:12-cv-2665 TLN GGH (ECF No. 53 at 5.) Thus, to the extent plaintiff names Placer County district attorneys and its investigators as defendants based on their role in investigating and prosecuting the Placer County action, such claims are barred by res judicata based on the dismissal entered in Case No. 2:12-cv-2665 GEB GGH PS.

For all of the above reasons, plaintiff's complaint is dismissed for lack of jurisdiction.

Motion for Injunctive Relief

On October 16, 2013, plaintiff filed a motion for injunctive relief based on the restraining order issued by the Placer County Superior Court in July of 2011. (ECF No. 6 at 3.) For all of the reasons set forth above, this court does not have jurisdiction, and plaintiff's motion is denied.

Motion for Appointment of Counsel

Plaintiff requests that the court appoint counsel. District courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether "exceptional circumstances" exist, the court must consider plaintiff's likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that warrant a request for voluntary assistance of counsel.

Having considered the factors under Palmer, the court finds that plaintiff has failed to meet his burden of demonstrating exceptional circumstances warranting the appointment of counsel at this time.

Conclusion

The undersigned has considered whether plaintiff may amend the pleading to state a claim upon which relief can be granted. "Valid reasons for denying leave to amend include undue delay, bad faith, prejudice, and futility." California Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir.1988). See also Klamath-Lake Pharm. Ass'n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir.1983) (while leave to amend shall be freely given, the court does not have to allow futile amendments). In light of the deficiencies of the complaint, the court finds that it would be futile to grant plaintiff leave to amend.

Accordingly, IT IS ORDERED that:

1. Plaintiff's request for leave to proceed in forma pauperis (ECF Nos. 2, 5) is granted.

2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court's order to the Placer County Sheriff filed concurrently herewith.

3. Plaintiff's complaint is dismissed for lack of jurisdiction.

4. Plaintiff's motion for preliminary injunction (ECF No. 6) is denied.

5. Plaintiff's motion for appointment of counsel (ECF No. 7) is denied.

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KENDALL J. NEWMAN

UNITED STATES MAGISTRATE JUDGE