Shehee v. Flores, et al.

Filing 10

ORDER DISMISSING First Amended Complaint and GRANTING Plaintiff Leave to File a Second Amended Complaint, signed by Magistrate Judge Gary S. Austin on 11/4/14: Second Amended Complaint Due in Thirty Days. (Attachments: # 1 Amended Complaint - blank form)(Hellings, J)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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Case No. 1:14 cv 00589 LJO GSA

GREGORY ELL SHEHEE,

ORDER DISMISSING FIRST AMENDED
COMPLAINT AND GRANTING PLAINTIFF
LEAVE TO FILE A SECOND AMENDED
COMPLAINT

vs.

SGT. FLORES, et al.,
Defendants

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SECOND AMENDED COMPLAINT DUE
IN THIRTY DAYS

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I.

Screening Requirement
Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule

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302 pursuant to 28 U.S.C. § 636(b)(1).

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“Rule 8(a)‟s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain “a

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short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R.

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Civ. P. 8(a). “Such a statement must simply give the defendant fair notice of what the plaintiff‟s

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claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the

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liberal pleading standard . . . applies only to a plaintiff‟s factual allegations.” Neitze v. Williams,

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490 U.S. 319, 330 n.9 (1989). “[A] liberal interpretation of a civil rights complaint may not

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supply essential elements of the claim that were not initially pled.” Bruns v. Nat‟l Credit Union

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Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268
(9th Cir. 1982)).
II.

Plaintiff’s Claims
This action proceeds on the May 5, 2014, first amended complaint. Plaintiff is a civil

detainee in the custody of the California Department of Mental Health at Coalinga State Prison.
Plaintiff‟s complaint consists of a rambling, disconnected narrative, punctuated with references
to an underlying offense that Plaintiff was charged with. Although unclear from the allegations
in the first amended complaint, Plaintiff appears to be challenging some type of disciplinary
process at Coalinga State Hospital. Plaintiff also references access to legal documents and
Plaintiff‟s ability to litigate civil actions that he has filed. Plaintiff names as Defendants the
following individuals: Chief of Police Carter; Sgt. Maylin; Officer Magayo; Officer Smith;
former Litigation Coordinator Villalobos; Unit Supervisor Perryman.
Regarding any challenges to a criminal conviction, Plaintiff is advised that when a

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prisoner challenges the legality or duration of his custody, or raises a constitutional challenge

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which could entitle him to an earlier release, his sole federal remedy is a writ of habeas corpus.

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Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert.

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denied, 498 U.S. 1126 (1991).

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As to any challenge to a disciplinary process, Plaintiff is advised that a claim for damages

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for unconstitutional conviction or imprisonment is not cognizable under 42 U.S.C. § 1983 if a

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judgment in favor of plaintiff would necessarily imply the invalidity of his conviction or

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sentence, unless the prisoner can demonstrate that the conviction or sentence has previously been

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invalidated. 512 U.S. at 487. In applying the principle to the facts of Balisok, the Court held

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that a claim challenging the procedures used in a prison disciplinary hearing, even if such a claim

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seeks money damages and no injunctive relief, is not cognizable under § 1983 if the nature of the

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inmate‟s allegations are such that, if proven, would necessarily imply the invalidity of the result

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of the prison disciplinary hearing. 520 U.S. at 646. Because such a challenge, if successful,

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would invalidate the duration of the inmate‟s confinement, it is properly brought as a habeas

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corpus petition and not under § 1983. Heck, 512 U.S. at 487; Preiser v. Rodriguez, 411 U.S. 475,
500 (1973).
Regarding any claim regarding access to the courts, Plaintiff is advised that he must
allege facts indicating that he has suffered actual injury. Because states must ensure indigent
prisoners meaningful access to the courts, prison officials are required to provide either (1)
adequate law libraries, or (2) adequate assistance from persons trained in the law. Bounds v.

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Smith, 430 U.S. 817, 828 (1977). Under prior law, Bounds was treated as establishing “core

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requirements,” such that a prisoner alleging deprivation of the Bounds minima need not allege

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actual injury to a state constitutional claim. Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989).

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Recent Supreme Court precedent abolishes such approach, however, providing that all inmate

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claims for interference with access to the court include “actual injury” as an element. Casey v.

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Lewis, 518 U.S. 343 (1996).

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To establish a Bounds violation, prisoner must show that his prison‟s law library or legal

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assistance program frustrated or impeded his ability to pursue a nonfrivolous legal claim. Casey,

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supra, 518 U.S. 343, 347. The right of access does not require the State to “enable the prisoner

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to discover grievances” or to “litigate effectively once in court.”

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Here, the Court finds Plaintiff‟s allegations to be vague. Plaintiff sets forth a generalized

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allegations, and names individual defendants. To state a claim under section 1983, a plaintiff

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must allege that (1) the defendant acted under color of state law and (2) the defendant deprived

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him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442

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F.3d 1178, 1185 (9th Cir. 2006). “A person deprives another of a constitutional right, where that

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person „does an affirmative act, participates in another‟s affirmative acts, or omits to perform an

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act which [that person] is legally required to do that causes the deprivation of which complaint is

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made.‟” Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007) (quoting Johnson v. Duffy, 588

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F.2d 740, 743 (9th Cir. 1978)). “[T]he „requisite causal connection can be established not only

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by some kind of direct, personal participation in the deprivation, but also by setting in motion a

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series of acts by others which the actor knows or reasonably should know would cause others to

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inflict the constitutional injury.‟” Id. (quoting Johnson at 743-44). Plaintiff has not specifically
charged each defendant with conduct indicating that they deprived Plaintiff of a protected
interest. The complaint should therefore be dismissed. Plaintiff will, however, be granted leave
to file an amended complaint.

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Plaintiff need not, however, set forth legal arguments in support of his claims. In order to
hold an individual defendant liable, Plaintiff must name the individual defendant, describe where
that defendant is employed and in what capacity, and explain how that defendant acted under
color of state law. Plaintiff should state clearly, in his or her own words, what happened.
Plaintiff must describe what each defendant, by name, did to violate the particular right described
by Plaintiff. Plaintiff has failed to do so here.
III.

Conclusion and Order
The Court has screened Plaintiff‟s first amended complaint and finds that it does not

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state any claims upon which relief may be granted under section 1983. The Court will provide

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Plaintiff with the opportunity to file an amended complaint curing the deficiencies identified by

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the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is

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cautioned that he may not change the nature of this suit by adding new, unrelated claims in his

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amended complaint. George, 507 F.3d at 607 (no “buckshot” complaints).

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Plaintiff‟s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what

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each named defendant did that led to the deprivation of Plaintiff‟s constitutional or other federal

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rights, Hydrick, 500 F.3d at 987-88. Although accepted as true, the “[f]actual allegations must

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be [sufficient] to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 554 (2007) (citations omitted).

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Finally, Plaintiff is advised that an amended complaint supercedes the original complaint,

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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565,

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567 (9th Cir. 1987), and must be “complete in itself without reference to the prior or superceded

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pleading,” Local Rule 15-220. Plaintiff is warned that “[a]ll causes of action alleged in an

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original complaint which are not alleged in an amended complaint are waived.” King, 814 F.2d

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at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)); accord
Forsyth, 114 F.3d at 1474.
Accordingly, based on the foregoing, it is HEREBY ORDERED that:
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to state a claim;
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The Clerk‟s Office shall send to Plaintiff a complaint form;

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

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second amended complaint;
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Plaintiff may not add any new, unrelated claims to this action via his amended
complaint and any attempt to do so will result in an order striking the amended

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Plaintiff‟s first amended complaint is dismissed, with leave to amend, for failure

complaint; and
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If Plaintiff fails to file an amended complaint, the Court will recommend that this
action be dismissed, with prejudice, for failure to state a claim.

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IT IS SO ORDERED.

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Dated:

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/s/ Gary S. Austin

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UNITED STATES MAGISTRATE JUDGE

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November 4, 2014