Herndon v. State Supreme Court California

Filing 5

ORDER DISMISSING CASE WITH LEAVE TO AMEND, signed by Magistrate Judge Jennifer L. Thurston on 3/24/2016. First Amended Complaint due by 4/18/2016. (Attachments: # 1 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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) Case No.: 1:16-cv-00379 JLT (PC)
)
Plaintiff,
) ORDER DISMISSING COMPLAINT WITH
) LEAVE TO AMEND
v.
)
STATE SUPREME COURT CALIFORNIA, )
)
)
Defendant.
)
GERROD L. HERNDON,

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Gerrod Herndon claims the trial court imposed a sentence that was too harsh after he was

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convicted of an unknown crime. Because this claim fails to state a cause of action, the Court

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ORDERS that Plaintiff’s complaint be DISMISSED with leave to amend.

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I.

SCREENING REQUIREMENT

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Because Plaintiff is seeking redress from governmental employees in a civil action, the Court

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is required to screen his complaint in order to identify cognizable claims. 28 U.S.C. § 1915A(a)-(b).

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The Court shall “dismiss the complaint, or any portion of the complaint, if the complaint (1) is

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frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary

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

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1915(e)(2)(B)(i)-(iii).

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II.

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COMPLAINT
Plaintiff’s complaint fails to provide any explanation for the basis for this litigation other than
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“use enhancement to push extra time in custody” and “the government (unintelligible) sentenced to far

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to much time. Disrespect and made mockery out of me. Modern day slavery.” (Doc. 1 at 1, 3) As

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relief he states, “Really should not be hurt. Restore to original form. Vacate all future custody matters.

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Money for damages, etc.” Id. at 3.

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III.

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PLEADING STANDARDS
A.

Fed. R. Civ. P. 8(a)

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“Pro se documents are to be liberally construed” and “‘must be held to ‘less stringent standards

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than formal pleadings drafted by lawyers.’” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting

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Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “[They] can only be dismissed for failure to state a

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claim if it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim

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which would entitle him to relief.’” Id. Under Federal Rule of Civil Procedure 8(a), “[a] pleading that

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states a claim for relief must contain: (1) a short and plaint statement of the grounds for the court’s

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jurisdiction, . . . ; (2) a short and plain statement of the claim showing that the pleader is entitled to

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relief; and (3) a demand for the relief sought.” Fed. R. Civ. P. 8(a). Each allegation must be simple,

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concise, and direct. Fed. R. Civ. P. 8(d)(1). While a complaint “does not need detailed factual

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allegations, a plaintiff’s obligation to provide the ‘grounds’ of his entitlement to relief requires more

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than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

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do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal quotation marks and citations

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omitted).

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In analyzing a pleading, the Court sets conclusory factual allegations aside, accepts all non-

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conclusory factual allegations as true, and determines whether those non-conclusory factual

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allegations accepted as true state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556

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U.S. 662, 676-684 (2009). “The plausibility standard is not akin to a probability requirement, but it

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asks for more than a sheer possibility that a defendant has acted unlawfully.” (Id. at 678) (internal

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quotation marks and citation omitted). In determining plausibility, the Court is permitted “to draw on

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its judicial experience and common sense.” Id. at 679.

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Here, Plaintiff fails to set forth any factual allegations that would give rise to this Court’s

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jurisdiction. The fact that he disagrees with the length of his criminal sentence is not actionable in this
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forum. Rather, he must file a direct appeal and could file collateral attacks on the sentence via

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petitions for habeas corpus but may file such an action in this court only if he has exhausted all

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remedies provided in state court. Then, he may raise only claims arising under federal law in this

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court. Thus, Plaintiff has failed to state a claim and the complaint must be dismissed.
B. 42 U.S.C. § 1983

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Though Plaintiff does not cite to 42 U.S.C. § 1983–or any other statute under which he seeks to

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proceed—under 42 U.S.C. § 1983, a plaintiff must show (i) that he suffered a violation of rights

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protected by the Constitution or created by federal statute, and (ii) that the violation was proximately

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caused by a person acting under color of state law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th

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Cir. 1991). The causation requirement of § 1983 is satisfied only if a plaintiff demonstrates that a

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defendant did an affirmative act, participated in another's affirmative act, or omitted to perform an act

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which he was legally required to do that caused the deprivation complained of. Arnold v. IBM, 637

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F.2d 1350, 1355 (9th Cir. 1981) (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)).

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Presuming Plaintiff intends to proceed under this statute, generally, a state agency is not a

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“person” under 42 U.S.C. § 1983.1 Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007). The Eleventh

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Amendment serves as a jurisdictional bar to suits brought by private parties against a state or state

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agency, unless the state consents to the suit. See Dittman v. California, 191 F.3d 1020, 1025-26 (9th

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Cir. 1999) (“In the absence of a waiver by the state . . . under the [E]leventh [A]mendment, agencies

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of the state are immune from private damage actions or suits for injunctive relief brought in federal

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court.”) (internal quotations omitted). Similarly, suing a state official in his or her official capacity is

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analogous to suiting the state itself. Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007)(quoting Will

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v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).

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Plaintiff brings suit against the California Supreme Court, a state agency, which is immune

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from suit under the Eleventh Amendment. See e.g., Allen v. California Dep't of Corr. & Rehab., Case

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Number 109-CV-00767-AWI-GSA, 2009 WL 4163510, at * 5 (E.D. Cal. 2009) report and

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recommendation adopted, Case Number 109-CV-00767-AWI -GSA (PC), 2009 WL 5197855 (E.D.

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A narrow exception to this rule permits a litigant to seek injunctive or declaratory relief against a state official. Flint, 488
F.3d at 825. Given that Plaintiff seeks monetary damages, (Doc. 1 at 3), this exception is inapplicable to the matter at bar.

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Cal. 2009) (CDCR held immune from § 1983 suit). Thus, Plaintiff’s claims are DISMISSED.

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IV.

LEAVE TO AMEND

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Though the Court has serious doubts whether Plaintiff can state a claim, it will provide him a

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final opportunity to amend his pleading to cure the deficiencies noted in this order. See Noll v.

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987) (“A pro se litigant must be given leave to amend his

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or her complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured

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by amendment.”) (internal quotations omitted). In his first amended complaint, Plaintiff must

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address the deficiencies noted here. Plaintiff is advised that his failure to do so will result in an

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order dismissing this action.

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Plaintiff is cautioned that in his first amended complaint, he may not change the nature of this

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suit by adding new, unrelated claims in his amended complaint. See George v. Smith, 507 F.3d 605,

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607 (7th Cir. 2007) (no “buckshot” complaints). Plaintiff is also advised that once he files his second

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amended complaint, his original pleadings are superceded and no longer serve any function in the

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case. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, the first amended complaint must be

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“complete in itself without reference to the prior or superceded pleading.” Local Rule 220. “All

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causes of action alleged in an original complaint which are not [re-]alleged in an amended complaint

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are waived.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citations omitted).

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Finally, the first amended complaint, including any attached documents, SHALL NOT exceed

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20 pages. The first amended complaint SHALL contain a plain and concise statement of facts in

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compliance with Fed. R. Civ. P. 8(a).
ORDER

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In accordance with the foregoing, it is HEREBY ORDERED that:

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1.

The complaint is DISMISSED with leave to amend;

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2.

Plaintiff is GRANTED 21 days from the date of service of this Order to file a first

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amended complaint attempting to cure the deficiencies identified by the Court in this

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screening order.

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3.

The Clerk of the Court is DIRECTED to send Plaintiff the form complaint for use in a
civil rights action; and
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4.

Plaintiff is cautioned that his failure to comply with this Order will result in a
recommendation that this action be dismissed.

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IT IS SO ORDERED.
Dated:

March 24, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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