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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1 WO KM 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Steven Ho, Plaintiff, 10 11 vs. 12 Benjamin Griego, et al., 13 Defendants. ) ) ) ) ) ) ) ) ) ) No. CV 11-904-PHX-GMS (MEA) ORDER 14 15 On May 5, 2011, Plaintiff Steven Ho, who is confined in the Corrections Corporation 16 of America-Saguaro Correctional Center (CCA-SCC), filed a pro se civil rights Complaint 17 pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a May 18 18, 2011 Order, the Court granted the Application to Proceed and dismissed the Complaint 19 because Plaintiff had failed to state a claim. The Court gave Plaintiff 30 days to file an 20 amended complaint that cured the deficiencies identified in the Order. 21 On June 15, 2011, Plaintiff filed his First Amended Complaint. On June 23, 2011, 22 Plaintiff filed another “First Amended Complaint,” which the Court will construe as a 23 Second Amended Complaint (Doc. 10). The Court will dismiss the Second Amended 24 Complaint and this action. 25 Also pending before the Court are Plaintiff’s June 15, 2011 and June 21, 2011 26 Motions for Extension Time (Docs. 7 and 9), and Plaintiff’s June 23, 2011 Application to 27 Proceed In Forma Pauperis (Doc. 11). The Court will deny these Motions. 28 1 I. Statutory Screening of Prisoner Complaints 2 The Court is required to screen complaints brought by prisoners seeking relief against 3 a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised 5 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may 6 be granted, or that seek monetary relief from a defendant who is immune from such relief. 7 28 U.S.C. § 1915A(b)(1), (2). 8 A pleading must contain a “short and plain statement of the claim showing that the 9 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not 10 demand detailed factual allegations, “it demands more than an unadorned, the-defendant- 11 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 12 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 13 statements, do not suffice.” Id. 14 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 15 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 16 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 17 that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 19 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 20 experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual 21 allegations may be consistent with a constitutional claim, a court must assess whether there 22 are other “more likely explanations” for a defendant’s conduct. Id. at 1951. 23 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 24 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th 25 Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards 26 than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 27 94 (2007) (per curiam)). 28 ... -2- 1 II. Second Amended Complaint 2 A second amended complaint supercedes the original and first amended complaints. 3 All causes of action alleged in an original complaint or first amended complaint which are 4 not alleged in a second amended complaint are waived and defendants named in an original 5 complaint or first amended complaint who are not named in a second amended complaint are 6 dismissed. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990) 7 (“an amended pleading supersedes the original”); King v. Atiyeh, 814 F.2d 565 (9th Cir. 8 1987). Accordingly, the Court will consider only those claims specifically asserted in 9 Plaintiff’s Second Amended Complaint with respect to only those defendants named in the 10 Second Amended Complaint. 11 In his one-count Second Amended Complaint, Plaintiff sues the following Defendants: 12 Assistant Warden Ben Griego; N-Unit Manager Timothy Dobson; Chief of Security Marco 13 Lopez; and Warden Todd Thomas. 14 Plaintiff alleges that he was convicted of a disciplinary violation without due process. 15 Plaintiff alleges that as a result of the conviction, he was placed in an 18-month “SHIP” 16 program and denied parole. Plaintiff seeks money damages and injunctive relief. 17 18 III. Failure to State a Claim 19 “[A] state prisoner seeking injunctive relief against the denial or revocation of good- 20 time credits must proceed in habeas corpus, and not under § 1983.” Nonnette v. Small, 316 21 F.3d 872, 875 (9th Cir. 2002). In addition, if a judgment for Plaintiff regarding the denial 22 of due process in a prison disciplinary proceeding would invalidate or imply the invalidity 23 of the deprivation of good-time credits or early release, the claim is barred under Heck v. 24 Humphrey, 512 U.S. 477 (1994), unless Plaintiff can show that the disciplinary conviction 25 has been previously invalidated. See Edwards v. Balisok, 520 U.S. 641, 646-48 (1997); 26 Heck, 512 U.S. at 486-87; Nonnette, 316 F.3d at 875. See also Wilkinson v. Dotson, 544 27 U.S. 74, 81-82 (2005) (“[A] state prisoner’s § 1983 action is barred (absent prior 28 invalidation)–no matter the relief sought (damages or equitable relief), no matter the target -3- 1 of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)–if 2 success in that action would necessarily demonstrate the invalidity of confinement or its 3 duration.”). 4 Here, Plaintiff’s claim, if decided in his favor, would either invalidate or imply the 5 invalidity of the denial of parole. Because Plaintiff has not demonstrated that his prison 6 disciplinary proceeding has been reversed, expunged, declared invalid, or called into question 7 by a federal court’s issuance of a writ of habeas corpus, his claim is barred by Heck. See 8 Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1996) (holding that because plaintiff’s 9 § 1983 claim “necessarily implicates the validity of the denial of parole, and therefore, the 10 prisoner’s continuing confinement,” his “claim for damages amounts to a collateral attack 11 on his denial of parole and subsequent incarceration. Heck does not permit this.”). The 12 Court will therefore dismiss the Second Amended Complaint for failure to state a claim. 13 IV. Dismissal without Leave to Amend 14 Because Plaintiff has failed to state a claim in his Second Amended Complaint, the 15 Court will dismiss his Second Amended Complaint. “Leave to amend need not be given if 16 a complaint, as amended, is subject to dismissal.” Moore v. Kayport Package Express, Inc., 17 885 F.2d 531, 538 (9th Cir. 1989). The Court’s discretion to deny leave to amend is 18 particularly broad where Plaintiff has previously been permitted to amend his complaint. 19 Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). Repeated 20 failure to cure deficiencies is one of the factors to be considered in deciding whether justice 21 requires granting leave to amend. Moore, 885 F.2d at 538. 22 The Court finds that Plaintiff’s claims cannot be cured by further amendment. The 23 Court will therefore dismiss Plaintiff’s Second Amended Complaint without leave to amend. 24 V. Motions 25 Plaintiff has filed two “Motions for Extension of Time” in which he requests 26 additional time to file a Motion for Preliminary Injunction. Because the Court will dismiss 27 this action, the Court will deny the Motions for Extension of Time. 28 With respect to Plaintiff’s June 23, 2011 Application to Proceed In Forma Pauperis, -4- 1 Plaintiff has already been granted in forma pauperis status. The Court will therefore deny 2 the June 23rd Application as moot. 3 IT IS ORDERED: 4 (1) 5 6 7 8 9 10 11 12 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. (3) 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. (4) 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. 13 § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this 14 decision would not be taken in good faith. 15 DATED this 6th day of July, 2011. 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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