Pennick v. Redford

Full title: CURLIN PENNICK, III, Plaintiff, v. REDFORD, et al., Defendants

Court: United States District Court, W.D. Washington, at Seattle

Date published: Jan 7, 2003

Case No. C02-2276Z (W.D. Wash. Jan. 7, 2003)

Opinion

Case No. C02-2276Z.

January 7, 2003

REPORT RECOMMENDATION

RICARDO S. MARTINEZ, United States Magistrate Judge

INTRODUCTION

Plaintiff is a Washington state prisoner who has filed a pro se complaint pursuant to 42 U.S.C. § 1983. Plaintiff's original complaint was deficient in several respects and the court granted plaintiff leave to file an amended complaint Plaintiff recently filed such an amended complaint; however, the amended complaint still fails to state a claim for relief. Accordingly, the court recommends that the amended complaint and this action be dismissed without prejudice.

BACKGROUND

On November 7, 2002, plaintiff filed a complaint pursuant to 42 U.S.C. § 1983. (Dkt. #1). In the complaint, he alleged that lawyers who had recently represented him in state criminal proceedings had violated his constitutional rights. Plaintiff named the lawyers as defendants, along with several detectives employed by the City of Des Moines Police Department, and the City of Des Moines Police Department itself.

On November 21, 2002, the court issued an Order advising plaintiff that his complaint was deficient in the following four respects: (1) His allegations against his trial counsel failed to state a claim because under Supreme Court precedent, public defenders acting in their role as advocates are not acting under color of state law for purposes of § 1983. See Georgia v. McCollum, 505 U.S. 42, 53 (1992); (2) Although the complaint named several detectives as defendants, it did not allege any personal participation on their part in the violation of plaintiff's civil rights. See Arnold v. IBM, 637 F.2d 1350, 1355 (9^th Cir. 1981); (3) The City of Des Moines Police Department could not be sued for the acts of its employees under a respondeat superior theory of liability, see Collins v. City of Harker Heights, 503 U.S. 115, 121 (1992), and (4) Plaintiff's complaint alleged only mental injury and therefore did not appear to meet the requirement under the Prison Litigation Reform Act that "[n]o federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e) (emphasis added).

In response, plaintiff filed an amended complaint on December 19, 2002 which attempts to cure the deficiencies described above (Dkt. #4). However, for the reasons described below, the amended complaint falls short.

DISCUSSION

In the amended complaint, plaintiff deletes his former counsel and the City of Des Moines Police Department as defendants, and instead names only three detectives. (Dkt. #4 at 1). In addition, he provides factual allegations related to the conduct of the three detectives. However, his claim against the three detectives now appears to be a claim that he lacks standing to bring: Plaintiff alleges that the detectives improperly held his young daughter in custody for one hour and interrogated her, after they had arrested plaintiff. ( Id. at 3).

Although plaintiff's conclusory allegations regarding his daughter are unsupported by any corroborating evidence, even assuming that the allegations are true, plaintiff lacks standing to bring such a claim on behalf of his daughter. In affirming a district court's dismissal of a similar case, the Ninth Circuit Court of Appeals stated: "It goes without saying that it is not in the interest of minors or incompetents that they be represented by non-attorneys. Where they have claims that require adjudication, they are entitled to trained legal assistance so their rights may be fully protected." Johns v. County of San Diego, 114 F.3d 874, 876-77 (9^th Cir. 1997) (quotation and citations omitted).

Plaintiff is not a lawyer. Thus, under Johns, he is not entitled to bring this action on the part of his daughter. Before concluding, however, the court notes that an alternative, albeit strained, construction of plaintiff's amended complaint exists: It is possible that plaintiff is attempting to assert that his rights were violated when the police improperly held and questioned his daughter. Plaintiff contends that the questioning of his daughter somehow produced "coerced evidence" (which he does not identify) and was an "illegal search and seizure." (Dkt. #4 at 3). Nonetheless, an allegation by plaintiff that his daughter's interrogation yielded incriminating evidence that was used against him, even if properly presented, would similarly fail to state a claim upon which relief could be granted. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that "when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." 512 U.S. at 487 (emphasis added). Plaintiff makes no such showing here. Accordingly, under either interpretation of plaintiff's amended complaint, the complaint fails to state a claim for which relief can be granted and should therefore be dismissed without prejudice.

CONCLUSION

Based on the foregoing discussion, the court recommends that plaintiff's amended complaint and this action be dismissed without prejudice.¹ A proposed Order accompanies this Report and Recommendation.

1 In addition, plaintiff has filed a motion for appointment of counsel (Dkt. #5) which, in light of the recommended dismissal of the underlying action, may be denied as moot.