Broussard v. Munoz, et al

Filing 23

ORDER DISMISSING 17 Action, without Prejudice, for Failure to State a Claim signed by Magistrate Judge Barbara A. McAuliffe on 10/8/2012. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CURLEY JOHN BROUSSARD, JR.,

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Plaintiff,

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CASE NO. 1:11-cv–01276-BAM PC
ORDER DISMISSING ACTION, WITHOUT
PREJUDICE, FOR FAILURE TO STATE A
CLAIM

v.
LISA A. MUNOZ, et al.,

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(ECF No. 17)

Defendants.
/

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I.

Screening Requirement

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Plaintiff Curley John Broussard, Jr., is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On August 10, 2012, Plaintiff’s

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complaint was screened and dismissed, with leave to amend. (ECF No. 4, 15.) Currently before the

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Court is Plaintiff’s first amended complaint, filed August 23, 2012. (ECF No. 17.)

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

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks

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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

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

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007)).

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II.

Discussion

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Plaintiff brings this action against Warden Connie Gipson, Director of California Corrections

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and Rehabilitation Matthew Cate, Governor Edmund G. Brown, and the California Correctional

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Peace Officers Association. Plaintiff states that he was wrongfully convicted based upon false

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testimony and has been illegally detained. On February 13, 2008, Correctional Officer Cortez

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allegedly conspired to provoke Plaintiff which resulted in a battery charge being filed in Kings

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County Superior Court. Plaintiff contends that the battery charge would not exist but for the illegal

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detention. (First Am. Compl. 3,1 ECF No. 17.) Plaintiff is seeking injunctive relief and a

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declaration that his rights were violated under the United States Constitution, equal rights under the

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law, and 42 U.S.C. ¶ 1981. (Id.)

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It has long been established that state prisoners cannot challenge the fact or duration of their

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confinement in a § 1983 action and their sole remedy lies in habeas corpus relief. Wilkinson v.

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Dotson, 544 U.S. 74, 78, 125 S.Ct. 1242 (2005). Often referred to as the favorable termination rule,

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this exception to § 1983’s otherwise broad scope applies whenever state prisoners “seek to invalidate

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the duration of their confinement - either directly through an injunction compelling speedier release

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or indirectly through a judicial determination that necessarily implies the unlawfulness of the State’s

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custody.” Wilkinson, 544 U.S. at 81 (emphasis added). Thus, “a state prisoner’s § 1983 action is

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barred (absent prior invalidation) - no matter the relief sought (damages or equitable relief), no

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matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison

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proceedings) - if success in that action would necessarily demonstrate the invalidity of confinement

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or its duration.” Id. at 81-82.

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Plaintiff cannot circumvent the favorable termination rule by couching his claims as injury

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that would not have occurred but for his wrongful conviction. Additionally, Plaintiff may not bring

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a claim under section 1983 against Correctional Officer Cortez for conspiring and provoking a

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All references to pagination of specific documents pertain to those as indicated on the upper right corners
via the CM/ECF electronic court docketing system.

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battery. Plaintiff was convicted of the battery on Correctional Officer Cortez and was sentenced to

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a six year sentence that is to run consecutively to his sentence for second degree murder. (Compl.

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¶¶ 22, 27-34, p. 86, ECF No. 4.) If Plaintiff was to succeed on his claim based upon the battery

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charge it would necessarily imply the invalidity of his sentence and is barred unless he can

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demonstrate that the conviction has been invalidated. Clemente v. Allen, 120 F.3d 703, 705 (7th

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Cir. 1997) (challenge to sentences that run concurrently is barred by Heck v. Humphreys, 512 U.S.

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447 (1994), as a challenge to the sentence’s duration.). Plaintiff’s sole remedy lies in a writ of

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habeas corpus.

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III.

Conclusion and Order

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Plaintiff’s complaint fails to state a claim upon which relief may be granted under section

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1983. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend ‘shall be freely

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given when justice so requires,’” Fed. R. Civ. P. 15(a), and “[l]eave to amend should be granted if

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it appears at all possible that the plaintiff can correct the defect,” Lopez v. Smith, 203 F.3d 1122,

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1130 (9th Cir. 2000) (internal citations omitted). However, the Court finds that the deficiencies

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outlined above are not capable of being cured by amendment, and therefore leave to amend should

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not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Noll v. Carlson, 809 F. 2d 1446, 1448-49 (9th Cir.

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1987). Accordingly, pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e), this action is

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HEREBY DISMISSED, without prejudice, based on Plaintiff’s failure to state a claim upon which

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relief may be granted under section 1983 and the Clerk’s Office shall enter judgment. This dismissal

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is subject to the “three-strikes” provision set forth in 28 U.S.C. § 1915(g). Silva v. Di Vittorio, 658

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F.3d 1090, 1098-99 (9th Cir. 2011).

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IT IS SO ORDERED.
Dated:
10c20k

October 8, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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