Vu v. Monique

Filing 11

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF NO. 1 ), Amended Complaint Due Within Thirty (30) Days, signed by Magistrate Judge Michael J. Seng on 6/24/2014. First Amended Complaint due by 7/28/2014. (Attachments: # 1 Complaint filed February 26, 2014, # 2 Amended Complaint Form)(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MAI THI VU,

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Plaintiff,

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CASE NO. 1:14-cv-0249-LJO-MJS (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
(ECF NO. 1)
JACQUES MONIQUE,

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Defendant.

AMENDED COMPLAINT DUE WITHIN
THIRTY (30) DAYS

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983.

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Her complaint is before the Court for screening.

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I.

SCREENING REQUIREMENT

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

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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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

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

PLEADING STANDARD

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Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). To

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state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right

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secured by the Constitution or laws of the United States was violated and (2) that the
alleged violation was committed by a person acting under the color of state law. See

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West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245
(9th Cir. 1987).
Plaintiff’s claims against Defendant are not cognizable under § 1983 because

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Defendant was acting under color of federal law, rather than state law. However, pro se

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complaints are liberally construed, Estelle v. Gamble, 429 U.S. 97, 106 (1976), and the

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Court will treat Plaintiff’s complaint as an attempt to state a claim under Bivens v. Six

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Unknown Named Agents, 403 U.S. 388 (1971). “Actions under § 1983 and those under

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Bivens are identical save for the replacement of a state actor under § 1983 by a federal

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actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). Thus, to

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state a claim under Bivens, a plaintiff must allege: (1) that a right secured by the

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Constitution of the United States was violated, and (2) that the alleged violation was

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committed by a federal actor. See id.

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A complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

PLAINTIFF’S ALLEGATIONS

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The incidents at issue in Plaintiff’s Complaint occurred during her incarceration at

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Central California Women’s Facility (“CCWF”). Plaintiff names Jacques Monique, IEA at

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United States Immigration & Customs Enforcement (“ICE”), as Defendant.

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Plaintiff alleges that Defendant filed an unwarranted immigration detainer on

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Plaintiff, a lawful permanent resident. Because of the detainer, Plaintiff is deprived of the

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opportunity to participate in otherwise available programs at CCWF. Plaintiff had no

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opportunity to challenge the detainer.

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Plaintiff argues that Defendant’s actions violated her rights under the Due Process
and Equal Protection Clauses of the United States Constitution.

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Plaintiff asks for a hearing regarding the detainer and that the detainer be lifted.
IV.

ANALYSIS
A.

Equal Protection

The Equal Protection Clause requires that persons who are similarly situated be

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treated alike. City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
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(1985). An equal protection claim may be established by showing that the defendant

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intentionally discriminated against the plaintiff based on the plaintiff's membership in a

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protected class, Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Lee v. City of

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Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly situated individuals were

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intentionally treated differently without a rational relationship to a legitimate state

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purpose. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Lazy Y

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Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of
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Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).

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Plaintiff’s allegations are not sufficient to support a constitutional claim for

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discrimination. Plaintiff does not state how or why she believes she was discriminated

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against. She does not allege membership in a suspect class or that she was treated

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differently from similarly situated inmates and that Defendant acted without a legitimate
state purpose. Nor does she explain what personal character traits she believes

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motivated the discrimination and why. See Washington v. Davis, 426 U.S. 229, 239-40
(1976) (to establish a violation of the Equal Protection Clause, the prisoner must present

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evidence of discriminatory intent). Plaintiff’s conclusory allegation that her Equal

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Protection rights were violated is unenlightening in these regards.

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Plaintiff’s allegations do not show denial of equal protection.
B.

Due Process

The Due Process Clause protects prisoners from being deprived of liberty without

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due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a

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cause of action for deprivation of procedural due process, a plaintiff must first establish

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the existence of a liberty interest for which the protection is sought. Liberty interests may

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arise from the Due Process Clause itself or from state law. Hewitt v. Helms, 459 U.S.

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460, 466-68 (1983).

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The Due Process Clause does not confer on inmates a liberty interest in eligibility

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for prison programs. Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (rejecting argument
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that a pending warrant and detainer that adversely affected defendant’s prison

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classification and qualification for institutional programs implicated a due process right).

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Liberty interests created by state law are generally limited to freedom from restraint
which “imposes atypical and significant hardship on the inmate in relation to the ordinary

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incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Under certain

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circumstances, labeling a prisoner with a particular classification may implicate a liberty

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interest subject to the protections of due process. Neal v. Shimoda, 131 F.3d 818, 827

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(9th Cir. 1997) (“sex offender” label coupled with mandatory treatment program triggered

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procedural protections).
Plaintiff’s allegation that she is unable to qualify for prison programs due to the

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immigration detainer is not sufficient to show a due process violation. Plaintiff does not
describe the programs she is disqualified from and does not provide sufficient facts to

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enable the Court to analyze whether disqualification “imposes atypical and significant

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hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515

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U.S. at 484. If Plaintiff chooses to amend, she must allege facts showing that the

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immigration detainer imposes “atypical and significant hardship” on her.

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C.

Habeas Corpus

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State prisoners cannot challenge the fact or duration of their confinement in a §

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1983 action. Their sole remedy lies in habeas corpus relief. Wilkinson v. Dotson, 544

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U.S. 74, 78 (2005). Often referred to as the favorable termination rule or the Heck bar,

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

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to invalidate the duration of their confinement-either directly through an injunction

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compelling speedier release or indirectly through a judicial determination that necessarily
implies the unlawfulness of the State's custody.” Wilkinson, 544 U.S. at 81. “[A] state

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prisoner's § 1983 action is barred (absent prior invalidation) if success in that action

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would necessarily demonstrate the invalidity of confinement or its duration.” Id. at 81-82;

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Heck v. Humphrey, 512 U.S. 477, 489 (1994) (until and unless favorable termination of

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the conviction or sentence occurs, no cause of action under § 1983 exists).
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Plaintiff does not appear to challenge her confinement at CCWF. However, if

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Plaintiff chooses to amend, she should note that such a challenge cannot be raised in a

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§ 1983 action.

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V.

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CONCLUSION AND ORDER
Plaintiff’s Complaint does not state a claim for relief. The Court will grant Plaintiff

an opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49

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(9th Cir. 1987). If Plaintiff opts to amend, she must demonstrate that the alleged acts
resulted in a deprivation of her constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff

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must set forth “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’”

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Id. at 678 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff must also demonstrate

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that the named Defendant personally participated in a deprivation of her rights. Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002).
Plaintiff should note that although she has been given the opportunity to amend, it

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is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th

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Cir. 2007). Plaintiff should carefully read this Screening Order and focus her efforts on

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curing the deficiencies set forth above.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general rule,

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an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no
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longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged. The amended complaint should be clearly and boldly titled “First
Amended Complaint,” refer to the appropriate case number, and be an original signed

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under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P.

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8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations

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omitted).

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Accordingly, it is HEREBY ORDERED that:
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The Clerk’s Office shall send Plaintiff (1) a blank civil rights complaint form

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and (2) a copy of her Complaint, filed February 26, 2014;
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Plaintiff’s Complaint is dismissed for failure to state a claim upon which

relief may be granted;

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3.

Plaintiff shall file an amended complaint within thirty (30) days; and

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4.

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

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the Court will recommend that this action be dismissed, with prejudice, for failure to state
a claim and failure to comply with a court order.

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IT IS SO ORDERED.
Dated:

June 24, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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