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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

VINCENT ROSENBALM,

Plaintiff,

v.

EDWARD FOULK; et al., 

Defendants. /

No. C 09-2208 SI (pr)

ORDER OF DISMISSAL 

INTRODUCTION

Vincent Rosenbalm, formerly an inmate at Napa State Hospital and now residing in

Oregon, filed a pro se civil rights action under 42 U.S.C. § 1983. The court dismissed his

original complaint with leave to amend. His amended complaint is now before the court for

review under 28 U.S.C. § 1915A. For the reasons discussed below, the amended complaint will

be dismissed, the several miscellaneous motions will be denied, and judgment will be entered.

BACKGROUND

A. Litigation History

This action is Vincent Rosenbalm's fifty-ninth action filed in this district. The first eight

were filed in 1996, and the last fifty-one were filed starting when he was most recently put in

custody in 2006. After numerous dismissals, Rosenbalm was subjected to the frequent filer rule

of 28 U.S.C. § 1915(g), which disallows pauper status "if the prisoner has, on 3 or more prior

occasions, while incarcerated or detained in any facility, brought an action or appeal in a court

of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to

state a claim upon which relief may be granted, unless the prisoner is under imminent danger of

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serious physical injury." Section 1915(g) was the basis for dismissal of dozens for Rosenbalm's

civil actions after the court determined that he was a prisoner. See, e.g., Order Of Dismissal

filed June 1, 2007 in In Re. Vincent Rosenbalm, No. C 06-7801 SI, et al. Rosenbalm paid the

filing fee in the present action. 

In addition to numerous civil complaints, Rosenbalm filed some habeas petitions. His

petitions were dismissed for reasons unrelated to § 1915(g). Rosenbalm's challenges to the

criminal proceedings against him were dismissed without prejudice to him filing a new petition

for writ of habeas corpus, but not until he was convicted or committed and exhausted state court

remedies. See, e.g., Orders Of Dismissal in Rosenbalm v. Superior Court, No. C 06-7412 SI,

and Rosenbalm v. Pearce, No. C 06-7237 SI. Rosenbalm's challenge to his commitment to the

state mental hospital was dismissed without prejudice to him filing a new habeas petition

challenging that order after exhausting state court remedies. See Order Of Dismissal in

Rosenbalm v. Foulk, No. C 07-4197 SI. 

Until about January of this year, Rosenbalm was housed at Napa State Hospital in

connection with a criminal case in Mendocino County. In 2006, the Mendocino County District

Attorney filed a complaint charging Rosenbalm with the felony of making a criminal threat, see

Cal. Penal Code § 422. Defense counsel quickly declared doubt as to Rosenbalm's mental

competency to stand trial, see Cal. Penal Code § 1368. On December 26, 2006, the court found

Rosenbalm not competent to stand trial and ordered Rosenbalm committed to Napa State

Hospital until he regained competence or for a maximum commitment time of three years, see

Cal. Penal Code § 1370. See Order Of Dismissal in Rosenbalm v. Foulk, No. 07-4197 SI. 

Rosenbalm stated in his amended complaint, p. 2, that his "case was 'reversed' on appeal for

failure to give [him] a Marsden hearing from 2006 till 2009!!" Amended Complaint, p. 2. He

was released from custody in or about January 2010.

B. The Complaint

The original complaint pertained to a wide range of problems. The claims in the

complaint generally fell into one of four categories: problems with the Ukiah police, problems

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at the county jail, problems with his criminal case, and problems at Napa State Hospital. 

The court dismissed the complaint with leave to amend. In so doing, it noted three major

deficient areas in the complaint that Rosenbalm had to address in his amended complaint. First,

and foremost, Rosenbalm had to narrow the focus because the complaint had significant joinder

problems. Order Of Dismissal With Leave To Amend, p. 4. Second, there was a potential Heck

problem insofar as Rosenbalm wanted to assert claims about the criminal case pending against

him. Id. at 4-6. For purposes of this order only, the court will assume without deciding that

Heck would not bar the claims. Third, the complaint did not adequately link individual

defendants to claims. Id. at 6. Rosenbalm made almost no effort to address that deficiency in

his amended complaint. 

C. The Amended Complaint

In his amended complaint, Rosenbalm alleges several claims pertaining to the criminal

case against him. He contends that: (a) he was subjected to unlawful imprisonment because he

was kept beyond the expiration of the limitations period for prosecution of his crime; (b) he was

improperly denied a proper Marsden hearing for three years; (c) the then-recently deceased

district attorney's name was listed on the criminal complaint against him (although the document

was signed by another person as "interim district attorney"), Amended Complaint, pp. 19-21, 38;

(d) a preliminary hearing was not held in a timely manner, id. at 24; (e) his appointed attorney

did not provide effective assistance of counsel, id. at 25, 30-32; (f) he was "denied hearings at

almost all stages of trial" by several judges, id. at 26-28; (g) he was denied bail, id. at 29; (h) the

doctor who examined him for purposes of determining his competency committed perjury in his

report, id. at 33; (I) a doctor at Napa State Hospital submitted a report on February 20, 2007 that

incorrectly stated that Rosenbalm was dangerous, id.; (j) he was denied a speedy trial, id. at 37;

and (k) the trial judge improperly denied a recusal request, id. at 38. 

The amended complaint also includes allegations that Ukiah police officers stole cash and

property from Rosenbalm in connection with his arrest. Id. at 17. At least some of the property

was taken pursuant to a search warrant, according to Rosenbalm. Id. Rosenbalm also alleges

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that dogs, cars, furniture and golf clubs were stolen from him during his incarceration by Ukiah

police and Mendocino County law enforcement employees; id. at 32, 35; his prosecution and

arrest were hate crimes, id. at 33; and police or deputies wouldn't take him to a court appearance

to oppose his landlord's efforts to dispossess him of his home or personal property, id. at 43. 

The amended complaint also alleges claims about the conditions of confinement at the

county jail and the state hospital. Rosenbalm alleges, among other things, that: he was denied

a toothbrush on October 19, 2006 at the county jail and later lost a tooth, id. at 24; his property

was taken and not returned at Napa State Hospital in December 2008, id. at 29; his mail was not

delivered in the winter of 2006 at the county jail, id.; his mail was tampered with and destroyed

from time to time at the state hospital and county jail, id. at 34-35; he was assaulted on or about

May 3, 2007 at Napa State Hospital, id. at 42; he was denied access to the synagogue at Napa

State Hospital, id. at 43; and he was denied court access at Napa State Hospital, id. at 44. 

DISCUSSION

Rosenbalm paid the full filing fee for the civil rights complaint filed to commence this

action. He therefore is not subjected to the frequent filer rule of 28 U.S.C. § 1915(g) for this

action. However, because he was a prisoner at the time of filing, his amended complaint is

subject to 28 U.S.C. § 1915A(a), which requires the court to engage in a preliminary screening

of any case in which a prisoner seeks redress from a governmental entity or officer or employee

of a governmental entity. See 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. See id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that

a right secured by the Constitution or laws of the United States was violated and (2) that the

violation was committed by a person acting under the color of state law. See West v. Atkins,

487 U.S. 42, 48 (1988).

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A. Dismissal Of Improperly Joined Claims

One of the major problems with the original complaint was its great breadth of topics.

In dismissing it with leave to amend, the court explained: 

[T]he complaint has significant joinder problems. It appears that Rosenbalm is trying to

litigate every claim that has previously been dismissed in a single action (although he

states he has hundreds of additional constitutional claims not alleged, Complaint,

"statement of claims" attachment, p. 15). Federal Rule of Civil Procedure 20(a) provides

that all persons may be joined in one action as defendants if "any right to relief is asserted

against them jointly, severally, or in the alternative with respect to or arising out of the

same transaction, occurrence, or series of transactions or occurrences" and "any question

of law or fact common to all defendants will arise in the action." Fed. R. Civ. P. 20(a)(2).

Rosenbalm's claim fall into four categories (i.e., interactions with police at or about the

time he was arrested, problems at the county jail, the prosecution of the criminal case

against him, and conditions at Napa State Hospital), and almost certainly are directed at

different sets of defendants. Rather than the court guessing which claim is most

important to Rosenbalm and selecting that claim as the reference point for applying Rule

20(a) to the other claims, Rosenbalm will be permitted to choose which category he

thinks is most important to him and which claim within the category he thinks is most

important to him. It may be that even the claims within a category are not properly

joined, but there is insufficient information in the complaint for the court to make that

determination. The better course is for Rosenbalm to pick one of the categories, and file

an amended complaint that includes only the claims within that category and to allege his

most important claim first. As to the claims within the chosen category, he must only

include the claims that are properly joined, i.e., that (a) arise out of the same transaction,

occurrence, or series of transactions or occurrences and (b) present questions of law or

fact common to all defendants. Dismissal of the other claims that are not properly joined

does not mean that they are lost forever, but only that they cannot be pursued in this

action – Rosenbalm is free to file a new action in which he asserts those claims. 

Order of Dismissal With Leave to Amend, p. 4. 

Rosenbalm chose not to comply with those directions, as his amended complaint is almost

as broad as his complaint. Accordingly, the court now does that which Rosenbalm chose not to:

excise the improperly joined claims. The claims pertaining to the criminal case are the first

described in the amended complaint, and therefore appear to be the most important to

Rosenbalm. 

The claims against the Ukiah police, Mendocino County Sheriff's deputies, and

Mendocino County animal control officers for confiscation of his property are not properly

joined with the claims pertaining to the criminal case because no "right to relief is asserted

against them jointly, severally, or in the alternative with respect to or arising out of the same

transaction, occurrence, or series of transactions or occurrences" and no "question of law or fact

common to all defendants will arise in the action." Fed. R. Civ. P. 20(a)(2). The claims against

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the Ukiah police, Mendocino County Sheriff's deputies, and Mendocino County animal control

officers for confiscation of Rosenbalm's property therefore are dismissed without prejudice to

him filing another action in which he asserts those claims.

Similarly, Rosenbalm's claims against his jailers and the officials at Napa State Hospital

about the conditions of confinement at those two facilities are not properly joined with the

claims pertaining to the criminal prosecution because no "right to relief is asserted against them

jointly, severally, or in the alternative with respect to or arising out of the same transaction,

occurrence, or series of transactions or occurrences" and no "question of law or fact common to

all defendants will arise in the action." Fed. R. Civ. P. 20(a)(2). The claims against the

Mendocino County Sheriff and officials at Napa State Hospital therefore are dismissed without

prejudice to Rosenbalm filing another action in which he asserts those claims. With the

dismissal of these improperly joined claims, there remain to be adjudicated the claims pertaining

to the criminal prosecution against Rosenbalm.

B. Review Of Remaining Claims

1. Claim Of Illegal Detention

In his amended complaint, Rosenbalm alleged that he was "illegally" detained for three

years. Amended Complaint, p. 2. He alleges that the Mendocino County Superior Court

"violated the statute of limitations" on October 19, 2009 by not releasing him. Id. at 2. He

states that he was arrested on the criminal charge on October 19, 2006, and that the statute of

limitation requires that prosecution for his offense must be commenced within three years of the

commission of the offense. Therefore, he reasons, his detention after October 19, 2009 was

impermissible.

What Rosenbalm fails to appreciate is that a statute of limitations does not define the

length of permissible detention but instead puts a limit on when the criminal prosecution must

begin. The statute requires that the "prosecution for an offense punishable by imprisonment in

the state prison shall be commenced within three years after commission of the offense." Cal.

Penal Code § 801. Rosenbalm's claim that he was illegally detained because he was not released

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from custody before the expiration of the statute of limitations is dismissed without leave to

amend.

2. Claims Pertaining To The Criminal Prosecution

Rosenbalm alleges various claims relating to the criminal prosecution against him in

Mendocino County Superior Court. Although Rosenbalm for the most part failed to name

defendants for his claims, the court concludes that, based on the facts alleged, none of the

expected defendants can be sued in a § 1983 action. 

The judges who presided over Rosenbalm's criminal case have absolute judicial immunity

for the acts alleged in the amended complaint, as the allegations concern decisions they made

in presiding over the case and those are acts performed in their judicial capacity. See Pierson

v. Ray, 386 U.S. 547, 553-55 (1967). 

The district attorney has absolute prosecutorial immunity for the acts alleged in the

amended complaint, as the allegations concern his conduct as an advocate during the initiation

of the case and its presentation to the superior court in the criminal case. See Buckley v.

Fitzsimmons, 509 U.S. 259, 272-73 (1993); Imbler v. Pachtman, 424 U.S. 409, 431 (1976); see,

e.g., Burns v. Reed, 500 U.S. 478, 490-91 & n.6 (1991) (prosecutors absolutely immune for their

conduct before grand juries and in presenting evidence at probable-cause hearings for a search

warrant). 

 Rosenbalm's defense attorney is not a state actor who could be sued in a § 1983 action.

State court criminal defendants cannot sue their lawyers in federal court for most lawyer-type

mistakes. A public defender does not act under color of state law, an essential element of an

action under 42 U.S.C. § 1983, when performing a lawyer’s traditional functions, such as

entering pleas, making motions, objecting at trial, cross-examining witnesses, and making

closing arguments. Polk County v. Dodson, 454 U.S. 312, 318-19 (1981). All of the allegations

Rosenbalm makes against his defense attorneys are made about traditional lawyering functions

in criminal cases.

The above-mentioned immunities for the judges and prosecutor, and the public defender's

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status as a non-state actor, require dismissal of Rosenbalm's claims against them. The court

dismisses Rosenbalm's claims for: unlawful imprisonment because he was kept beyond the

expiration of the limitations period for prosecution of his crime; denial of a timely proper

Marsden hearing; defective listing of the attorney name on the criminal complaint; untimely

preliminary hearing; ineffective assistance of counsel; and denial of hearings, bail, speedy trial,

and a recusal request. 

Rosenbalm also alleges that two doctors made false statements. He alleges that Dr.

Rosoff, the psychologist/psychiatrist to whom he was referred for an evaluation of his

competency, allegedly committed perjury in his report to the court that was used to find

Rosenbalm incompetent. The report was used at court hearings held to determine whether

Rosenbalm should be committed pending a restoration of his competence. Although Rosenbalm

alleges that he was unable to personally confront Dr. Rosoff, his attorney had stipulated to the

admission of the doctors' mental evaluation reports at the competency hearing on November 27,

2006. People v. Rosenbalm, 2008 WL 888945, *2 (Cal. Ct. App. 2008) (unpublished decision).

Rosenbalm also alleges that Dr. Wiltse at Napa State Hospital submitted a report to the court on

February 20, 2007 that incorrectly stated that he was dangerous. The claims against the doctors

fail because Rosenbalm had no constitutionally guaranteed immunity from being falsely or

wrongly accused of conduct that could result in the deprivation of a protected liberty interest.

See Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986). As long as he was afforded

procedural due process in connection with the competency proceedings, the allegations that

doctors included false information in their reports submitted in connection with those

proceedings, fail to state a claim under § 1983. Insofar as he could allege that procedural

protections were not afforded, those claims would be against the judge, prosecutor, and/or public

defender, but a claim against one or more of them could not proceed for the reasons discussed

above. Further, absolute witness immunity would bar a claim with regard to at least the

testimony from such a witness if either testified. See Briscoe v. LaHue, 460 U.S. 325, 329-46

(1983) (police officer witness at trial); Burns v. County of King, 883 F.2d 819 (9th Cir. 1989)

(social worker preparing affidavit for use at bail revocation proceeding). The due process

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claims against the doctors are dismissed. 

C. Miscellaneous Motions

All of the claims in the amended complaint have been dismissed. In light of the dismissal

of those claims, Rosenbalm's several miscellaneous motions will be denied. Specifically, the

motion to enforce emergency summons service is DENIED. (Docket # 11.) No summonses

will issue from the court and no summons should be served by Rosenbalm because the court has

concluded that the amended complaint does not state a claim against any defendant.

Rosenbalm's renewed motions to appoint counsel are DENIED. (Docket # 14, 17, and 18.)

Counsel will not be appointed in a dismissed action. Rosenbalm's motion for a rehearing on his

Marsden motion is DENIED (Docket # 13.) That motion should have been made, if at all, in his

criminal case in state court. 

CONCLUSION

For the foregoing reasons, the amended complaint is dismissed without leave to amend

for failure to state a claim upon which relief may be granted. The clerk shall close the file.

IT IS SO ORDERED.

Dated: July 13, 2010 _______________________

 SUSAN ILLSTON

United States District Judge

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