Torlucci v. USA, et al.

Filing 5

FIRST SCREENING ORDER Dismissing Complaint, with Leave to Amend, for Failure to State a Claim Under Section 1983, signed by Magistrate Judge Sheila K. Oberto on 4/1/13. 30-Day Deadline. (Attachments: # 1 Amended Complaint Form)(Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARTHUR TORLUCCI,

CASE NO. 1:13-cv-00423-SKO PC

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Plaintiff,

FIRST SCREENING ORDER DISMISSING
COMPLAINT, WITH LEAVE TO AMEND,
FOR FAILURE TO STATE A CLAIM UNDER
SECTION 1983

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v.
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USA, et al.,
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(Doc. 1)
Defendants.

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THIRTY-DAY DEADLINE
/

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First Screening Order
I.

Screening Requirement and Standard

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Plaintiff Arthur Torlucci, a state prisoner proceeding pro se and in forma pauperis, filed this

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civil rights action pursuant to 42 U.S.C. § 1983 on March 22, 2013. The Court is required to screen

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complaints brought by prisoners seeking relief against a governmental entity or an officer or

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employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or

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portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to

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state a claim upon which relief may be granted, or that seek monetary relief from a defendant who

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is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any

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portion thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted.”

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28 U.S.C. § 1915(e)(2)(B)(ii).

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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 (2009) (citing Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)), and courts “are not required to

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indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted). While factual allegations are accepted as true, legal

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conclusions are not. Iqbal, 556 U.S. at 678.

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Pro se litigants are entitled to have their pleadings liberally construed and to have any doubt

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resolved in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121-23 (9th Cir. 2012); Hebbe v. Pliler,

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627 F.3d 338, 342 (9th Cir. 2010), but Plaintiff’s claims must be facially plausible to survive

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screening, which requires sufficient factual detail to allow the Court to reasonably infer that each

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named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation marks

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omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that

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a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of

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satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572

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F.3d at 969.

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II.

Discussion

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On May 12, 2012, Plaintiff filed a habeas petition in the Sacramento Division of the Eastern

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District of California, case number 2:12-cv-01475-WBS-EFB Torlucci v. Cate. The Court found

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that Plaintiff was challenging his conditions of confinement and it dismissed the action on November

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1, 2012, for lack of jurisdiction, without leave to amend but without prejudice to filing a civil rights

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action. (Docs. 6, 9.)

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Plaintiff then filed a civil rights complaint on March 22, 2013. However, the complaint sets

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forth no facts giving rise to any cognizable claims for relief. Plaintiff’s complaint is rambling and

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disjointed, but he seeks money damages, to be freed from the illegal custody of the California

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Department of Corrections and Rehabilitation, to have his conviction expunged, to have the

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Hollywood PD busted, and the imprisonment of the defendants. Plaintiff mentions a claim relating

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to “medical-psych-custody” and he cites to RLUIPA, but he also alleges that Judge Robert J. Perry

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used the wrong legal standard to deny Plaintiff relief in state court in 1999 and he mentions the
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Hollywood PD’s involvement in a crime ring. (Comp., court record pp. 3-4.) In addition to citing

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to the Sacramento Division case, Torlucci v. Cate, Plaintiff cites to a Northern District of California

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case number.

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Plaintiff’s complaint fails to state any claims upon which relief may be granted, and the Court

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will provide Plaintiff with an opportunity to file an amended complaint. Plaintiff is advised to take

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note of the following standards.

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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other

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federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092

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(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). To state a claim, Plaintiff must demonstrate a link

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between actions or omissions of each named defendant and the violation of his rights; there is no

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respondeat superior liability under section 1983. Iqbal, 556 U.S. at 676-77, 129 S.Ct. at 1949;

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Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton,

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588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934.

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Plaintiff is incarcerated at Kern Valley State Prison (KVSP) and a suit challenging his

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conditions of confinement there is properly brought in the Fresno Division of the Eastern District

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of California. Plaintiff must allege facts linking named defendants to actions or omissions which

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violated his rights, however. To the extent that Plaintiff is seeking to litigate mental health or

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medical care at KVSP, negligent medical care does not support a claim for relief under section 1983.

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Snow v. McDaniel, 681 F.3d 978, 987-88 (9th Cir. 2012) (citing Estelle v. Gamble, 429 U.S. 97, 106,

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97 S.Ct. 285 (1977)). While the Eighth Amendment of the United States Constitution entitles

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Plaintiff to medical care, the Eighth Amendment is violated only when a prison official acts with

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deliberate indifference to an inmate’s serious medical needs. Snow, 681 F.3d at 985; Wilhelm, 680

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F.3d at 1122; Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Furthermore, Plaintiff may not, in this civil rights action, challenge his conviction or the

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length of his sentence, Wilkinson v. Dotson, 544 U.S. 74, 78, 125 S.Ct. 1242 (2005); Preiser v.

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Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827 (1973), and Plaintiff may not sue judges based on his

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disagreement with the decisions they made in his cases, Cleavinger v. Saxner, 474 U.S. 193, 1993

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200, 106 S.Ct. 496 (1985); Stump v. Sparkman, 435 U.S. 349, 355-56, 98 S.Ct. 1099 (1978);

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Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003); Schucker v.

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Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988).

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III.

Conclusion and Order

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Plaintiff’s complaint fails to state any claims upon which relief may be granted under section

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1983. The Court is required to provide Plaintiff with the opportunity to file an amended complaint.

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Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1130 (9th

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Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but under section 1983,

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it must state what each named defendant did that led to the deprivation of Plaintiff’s constitutional

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rights and liability may not be imposed on supervisory personnel under the theory of mere

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respondeat superior. Iqbal, 556 U.S. at 676-77; Snow, 681 F.3d at 989; Starr v. Baca, 652 F.3d

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1202, 1205-07 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012). Although accepted as true, the

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“[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level. . . .”

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Twombly, 550 U.S. at 555 (citations omitted).

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Finally, an amended complaint supercedes the original complaint, Lacey v. Maricopa County,

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693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be “complete in itself without reference

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to the prior or superceded pleading,” Local Rule 220.

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Accordingly, it is HEREBY ORDERED that:

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1.

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Plaintiff’s complaint is dismissed, with leave to amend, for failure to state any claims
under section 1983;

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2.

The Clerk’s Office shall send Plaintiff a civil rights complaint form;

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3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file an

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amended complaint; and

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4.

If Plaintiff fails to file an amended complaint in compliance with this order, this

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action will be dismissed, with prejudice, for failure to state a claim under section

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1983.

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IT IS SO ORDERED.

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Dated:
ie14hj

April 1, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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