Gorski v. Department of Justice Bureau of Criminal Identification and Information

Filing 11

ORDER DISMISSING CASE for Failure to State a Claim upon which Relief may be Granted, signed by Magistrate Judge Gary S. Austin on 10/3/2013. CASE CLOSED(Martin-Gill, S)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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ROBERT CARL GORSKI,
Plaintiff,

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Case No. 1:13 cv 00489 GSA PC

vs.

DEPT. OF JUSTICE,

ORDER DISMISSING COMPLAINT FOR
FAILURE TO STATE A CLAIM UPON
WHICH RELIEF MAY BE GRANTED

Defendant.

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I.

Screening Requirement

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction

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pursuant to 28 U.S.C. § 636(c)1.
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).
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The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or
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Plaintiff filed his consent to proceed before a magistrate judge on April 15, 2013. (ECF No. 5.)
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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. §

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1915(e)(2)(B)(ii).

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II.

Plaintiff’s Claims

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Plaintiff, an inmate in the custody of the California Department of Corrections and
Rehabilitation at Avenal State Prison, brings this action against the California Department of

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Justice, Bureau of Criminal Information Analysis. Plaintiff’s sole claim in this action is a
request for the Court to order the Department of Justice to “grant me my paperwork from

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Department of Justice of 2005 for my expungement of my charge that was taken off from the

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County of Marin County.” (Compl. ¶ III.)

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To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted

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under color of state law and (2) the defendant deprived him of rights secured by the Constitution

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or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). “A person

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deprives another of a constitutional right, where that person ‘does an affirmative act, participates

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in another’s affirmative acts, or omits to perform an act which [that person] is legally required to

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do that causes the deprivation of which complaint is made.’” Hydrick v. Hunter, 500 F.3d 978,

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988 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “[T]he

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‘requisite causal connection can be established not only by some kind of direct, personal

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participation in the deprivation, but also by setting in motion a series of acts by others which the

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actor knows or reasonably should know would cause others to inflict the constitutional injury.’”

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Id. (quoting Johnson at 743-44).

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In order to state a claim for relief, Plaintiff must allege facts indicating that an individual
defendant deprived Plaintiff of a right protected by federal law or the U.S. Constitution. The
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only named defendant in this action is an agency of the State of California. The Eleventh

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Amendment bars suits against state agencies as well as those where the state itself is named as a

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defendant. See Natural Resources Defense Council v. California Department of Transportation,
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96 F.3d 420, 421 (9th Cir. 1996); Brooks, 951 F.2d at 1053; Taylor v. List, 880 F.2d 1040, 1045

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(9th Cir. 1989) (concluding that Nevada Department of Prisons was a state agency entitled to

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Eleventh Amendment immunity); Mitchell v. Los Angeles Community College District, 861

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F.2d 198, 201 (9th Cir. 1989).

Plaintiff has not identified any individuals nor identified any

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individual conduct that deprived Plaintiff of a protected interest.
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Further, when a prisoner challenges the legality or duration of his custody, or raises a

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constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a

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writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d

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874 (9th Cir. 1990), cert. denied, 498 U.S. 1126 (1991). Plaintiff refers to a conviction that was

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expunged. Should Plaintiff’s requested relief in any way affect the length of his sentence or the

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legality of his confinement, such a claim should be brought as an application for writ of habeas
corpus.
Accordingly, on September 16, 2013, an order was entered, dismissing Plaintiff’s

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complaint and granting Plaintiff leave to file an amended complaint. On September 30, 2013,

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Plaintiff filed a first amended complaint. In the first amended complaint, Plaintiff re-states the
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allegations of the original complaint. Plaintiff names as defendants “to be named DOJ police

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officers.” Plaintiff’s statement of claim, in its entirety, is that “I had false charges filed on me in

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2005 these charges were expunged. I’m asking DOJ to send me the paper work of the name of

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the officers, and the county.”

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III.

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Conclusion and Order
The Court screened Plaintiff’s original complaint and found that it did not state any

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claims upon which relief could be granted under section 1983. The Court provided Plaintiff with
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the opportunity to file an amended complaint curing the deficiencies identified by the Court in

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the September 16, 2013, order. Plaintiff has not cured the identified deficiencies. Plaintiff fails

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to identify any state actors that deprived him of a protected interest, and asserts a claim that, if

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proven, would invalidate his conviction. This action should therefore be dismissed.

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Accordingly, it is HEREBY ORDERED that this action is dismissed for failure to state a
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claim upon which relief may be granted. The Clerk is directed to close this case.

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IT IS SO ORDERED.

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Dated:

October 3, 2013

/s/

Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

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