Ho v. Griego et al

Filing 14

ORDER denying 7 Motion for Extension of Time Deadline ; denying 9 Motion for Extension of Time Deadline ; denying as moot 11 Motion for Leave to Proceed in forma pauperis. Plaintiff's Second Amended Complaint (Doc. 10) and this action are dismissed for failure to state a claim, and the Clerk of Court must enter judgment accordingly. The Clerk of Court must make an entry on the docket stating that the dismissal for failure to state a claim may count as a "strike" under 28 U.S .C. § 1915(g). The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. Signed by Judge G Murray Snow on 7/6/11.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Steven Ho,
Plaintiff,

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vs.

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Benjamin Griego, et al.,

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Defendants.

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No. CV 11-904-PHX-GMS (MEA)
ORDER

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On May 5, 2011, Plaintiff Steven Ho, who is confined in the Corrections Corporation

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of America-Saguaro Correctional Center (CCA-SCC), filed a pro se civil rights Complaint

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pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a May

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18, 2011 Order, the Court granted the Application to Proceed and dismissed the Complaint

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because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an

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amended complaint that cured the deficiencies identified in the Order.

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On June 15, 2011, Plaintiff filed his First Amended Complaint. On June 23, 2011,

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Plaintiff filed another “First Amended Complaint,” which the Court will construe as a

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Second Amended Complaint (Doc. 10). The Court will dismiss the Second Amended

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Complaint and this action.

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Also pending before the Court are Plaintiff’s June 15, 2011 and June 21, 2011

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Motions for Extension Time (Docs. 7 and 9), and Plaintiff’s June 23, 2011 Application to

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Proceed In Forma Pauperis (Doc. 11). The Court will deny these Motions.

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I.

Statutory Screening of Prisoner Complaints

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The Court is required to screen complaints brought by prisoners seeking relief against

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a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised

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claims that are legally frivolous or malicious, that fail to state a claim upon which relief may

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be granted, or that seek monetary relief from a defendant who is immune from such relief.

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28 U.S.C. § 1915A(b)(1), (2).

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A pleading must contain a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not

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demand detailed factual allegations, “it demands more than an unadorned, the-defendant-

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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Id.

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for

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relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual

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allegations may be consistent with a constitutional claim, a court must assess whether there

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are other “more likely explanations” for a defendant’s conduct. Id. at 1951.

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But as the United States Court of Appeals for the Ninth Circuit has instructed, courts

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must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th

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Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards

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than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89,

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94 (2007) (per curiam)).

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II.

Second Amended Complaint

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A second amended complaint supercedes the original and first amended complaints.

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All causes of action alleged in an original complaint or first amended complaint which are

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not alleged in a second amended complaint are waived and defendants named in an original

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complaint or first amended complaint who are not named in a second amended complaint are

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dismissed. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990)

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(“an amended pleading supersedes the original”); King v. Atiyeh, 814 F.2d 565 (9th Cir.

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1987). Accordingly, the Court will consider only those claims specifically asserted in

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Plaintiff’s Second Amended Complaint with respect to only those defendants named in the

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Second Amended Complaint.

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In his one-count Second Amended Complaint, Plaintiff sues the following Defendants:

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Assistant Warden Ben Griego; N-Unit Manager Timothy Dobson; Chief of Security Marco

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Lopez; and Warden Todd Thomas.

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Plaintiff alleges that he was convicted of a disciplinary violation without due process.

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Plaintiff alleges that as a result of the conviction, he was placed in an 18-month “SHIP”

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program and denied parole.
Plaintiff seeks money damages and injunctive relief.

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III.

Failure to State a Claim

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“[A] state prisoner seeking injunctive relief against the denial or revocation of good-

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time credits must proceed in habeas corpus, and not under § 1983.” Nonnette v. Small, 316

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F.3d 872, 875 (9th Cir. 2002). In addition, if a judgment for Plaintiff regarding the denial

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of due process in a prison disciplinary proceeding would invalidate or imply the invalidity

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of the deprivation of good-time credits or early release, the claim is barred under Heck v.

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Humphrey, 512 U.S. 477 (1994), unless Plaintiff can show that the disciplinary conviction

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has been previously invalidated. See Edwards v. Balisok, 520 U.S. 641, 646-48 (1997);

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Heck, 512 U.S. at 486-87; Nonnette, 316 F.3d at 875. See also Wilkinson v. Dotson, 544

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U.S. 74, 81-82 (2005) (“[A] state prisoner’s § 1983 action is barred (absent prior

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invalidation)–no matter the relief sought (damages or equitable relief), no matter the target
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of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)–if

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success in that action would necessarily demonstrate the invalidity of confinement or its

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duration.”).

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Here, Plaintiff’s claim, if decided in his favor, would either invalidate or imply the

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invalidity of the denial of parole. Because Plaintiff has not demonstrated that his prison

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disciplinary proceeding has been reversed, expunged, declared invalid, or called into question

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by a federal court’s issuance of a writ of habeas corpus, his claim is barred by Heck. See

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Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1996) (holding that because plaintiff’s

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§ 1983 claim “necessarily implicates the validity of the denial of parole, and therefore, the

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prisoner’s continuing confinement,” his “claim for damages amounts to a collateral attack

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on his denial of parole and subsequent incarceration. Heck does not permit this.”). The

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Court will therefore dismiss the Second Amended Complaint for failure to state a claim.

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IV.

Dismissal without Leave to Amend

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Because Plaintiff has failed to state a claim in his Second Amended Complaint, the

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Court will dismiss his Second Amended Complaint. “Leave to amend need not be given if

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a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, Inc.,

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885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is

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particularly broad where Plaintiff has previously been permitted to amend his complaint.

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Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). Repeated

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failure to cure deficiencies is one of the factors to be considered in deciding whether justice

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requires granting leave to amend. Moore, 885 F.2d at 538.

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The Court finds that Plaintiff’s claims cannot be cured by further amendment. The

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Court will therefore dismiss Plaintiff’s Second Amended Complaint without leave to amend.

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V.

Motions

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Plaintiff has filed two “Motions for Extension of Time” in which he requests

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additional time to file a Motion for Preliminary Injunction. Because the Court will dismiss

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this action, the Court will deny the Motions for Extension of Time.

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With respect to Plaintiff’s June 23, 2011 Application to Proceed In Forma Pauperis,
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Plaintiff has already been granted in forma pauperis status. The Court will therefore deny

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the June 23rd Application as moot.

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IT IS ORDERED:

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(1)

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Plaintiff’s June 15, 2011 ad June 21, 2011 Motions for Extension of Time

(Docs. 7 and 9) are denied.
(2)

Plaintiff’s June 23, 2011 Application to Proceed In Forma Pauperis (Doc. 11)

is denied as moot.
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Plaintiff’s Second Amended Complaint (Doc. 10) and this action are dismissed

for failure to state a claim, and the Clerk of Court must enter judgment accordingly.
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The Clerk of Court must make an entry on the docket stating that the dismissal

for failure to state a claim may count as a “strike” under 28 U.S.C. § 1915(g).
(5)

The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

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§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this

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decision would not be taken in good faith.

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DATED this 6th day of July, 2011.

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