McNeal v. Gonzalez

Filing 20

ORDER DISMISSING Action For Failure To State A Claim Under Section 1983, signed by Magistrate Judge Barbara A. McAuliffe on 3/17/2015. CASE CLOSED.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VERNON MCNEAL,

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Plaintiff,
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D. GONZALEZ,

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Defendant.

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1:14-cv-00030-BAM (PC)
ORDER DISMISSING ACTION FOR
FAILURE TO STATE A CLAIM UNDER
SECTION 1983

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I.

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Plaintiff Vernon McNeal (“Plaintiff”) 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 January 8, 2015, the Court

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dismissed Plaintiff’s first amended complaint with leave to amend. Plaintiff’s second amended

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complaint, filed on February 23, 2015, is currently before the Court for screening.

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Screening Requirement and Standard

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

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28

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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

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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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).

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Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338,

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342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially

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plausible, 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, 129 S.Ct. at 1949

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(quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir.

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2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere

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consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at

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678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.
Plaintiff’s Allegations

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II.

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Plaintiff is currently housed at Calipatria State Prison. The events alleged in the

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complaint occurred while Plaintiff was housed at Corcoran State Prison CSATF. Plaintiff names

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Correctional Officer D. Gonzalez as the sole defendant in his official and individual capacity.

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As with his original and amended complaint, Plaintiff alleges that on June 26, 2012, a

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fight broke out between two inmates on C yard between 2 and 3 building. Plaintiff was at the

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corner of 4 building. Videotape evidence shows Plaintiff’s distance was not a threat, but

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Building 4 Tower Officer Gonzalez shot Plaintiff in the right leg with a 40 mm launcher. Officer

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Gonzalez stated on his incident report that Plaintiff advanced two steps toward the altercation.

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Plaintiff claims that the videotape evidence contradicts this statement. Plaintiff believes that

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Officer Gonzalez invented the two steps so that he could use Plaintiff for target practice.

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Plaintiff contends that he sustained a permanent injury to his right leg.

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Plaintiff additionally alleges that he had to file multiple 602s about getting shot by

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Officer Gonzalez. Plaintiff claims that Appeals Coordinators kept rejecting and cancelling

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Plaintiff’s 602s.

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Plaintiff seeks compensatory and punitive damages.

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III.

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The Court previously dismissed Plaintiff’s claim of excessive force against Defendant

Discussion

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Gonzalez because success in this action would necessarily invalidate the result of a disciplinary

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conviction and loss of credits. According to papers attached to Plaintiff’s original complaint, the

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disciplinary conviction was based on finding that Plaintiff failed to comply with orders and

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caused Defendant Gonzalez to use his 40mm launcher. The Court instructed Plaintiff that he

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could not pursue his excessive force claim in this action unless he could demonstrate that his

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disciplinary conviction had been invalidated. The Court then granted Plaintiff an opportunity to

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cure the identified deficiencies to the extent he was able to do so in good faith.

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In his amended complaint, Plaintiff omitted any reference to the disciplinary conviction

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and resulting loss of credits. Plaintiff was given a final opportunity to cure the deficiencies in his

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complaint, but was cautioned that he could not merely omit information in order to state a

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cognizable claim.

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Heck Bar

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As a general matter, state prisoners may not challenge the fact or duration of their

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confinement in a section 1983 action and their sole remedy lies in habeas corpus relief.

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Wilkinson v. Dotson, 544 U.S. 74, 78, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005). Often referred to

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as the favorable termination rule or the Heck bar, this exception to section 1983’s otherwise

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broad scope applies whenever state prisoners “seek to invalidate the duration of their

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confinement-either directly through an injunction compelling speedier release or indirectly

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through a judicial determination that necessarily implies the unlawfulness of the State's custody.”

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Wilkinson, 544 U.S. at 81 (emphasis in original). Accordingly, “a state prisoner's [section] 1983

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action is barred (absent prior invalidation)—no matter the relief sought (damages or equitable

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relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal
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prison proceedings)—if success in that action would necessarily demonstrate the invalidity of

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confinement or its duration.” Id. at 81–2. The favorable termination rule applies to prison

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disciplinary proceedings if those proceedings resulted in the loss of good-time or behavior

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credits. Edwards v. Balisok, 520 U.S. 641, 646–48, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997).

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To the extent Plaintiff’s success in this action would necessarily invalidate the result of

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the disciplinary hearing, Plaintiff may not pursue his excessive force claim in this action unless

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he can demonstrate that his disciplinary conviction has been invalidated. Heck v. Humphrey,

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512 U.S. 477, 489, 114 S.Ct. 2364, 2373 (1994) (“Even a prisoner who has fully exhausted

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available state remedies has no cause of action under § 1983 unless and until the conviction or

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sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas

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corpus.”).

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In the second amended complaint, Plaintiff again omits any reference to the disciplinary
proceedings. He has not demonstrated that his disciplinary conviction has been invalidated.

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IV.

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

Conclusion and Order

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1983. Plaintiff has been unable to cure the identified deficiencies and further leave to amend is

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not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Accordingly, this action is

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dismissed, without prejudice, for failure to state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

March 17, 2015

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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