Toscano v. Kernan, et al.

Filing 8

ORDER DISMISSING 1 COMPLAINT WITH PREJUDICE AND WITHOUT LEAVE TO AMEND; CLERK TO TERMINATE MOTIONS AND CLOSE CASE; DISMISSAL COUNTS AS A STRIKE PURSUANT TO 28 U.S.C. § 1915(g) signed by Magistrate Judge Michael J. Seng on 4/18/2017. CASE CLOSED. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BENJAMIN K. TOSCANO,

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Plaintiff,

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v.
SCOTT KERNAN, et al.,

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Defendants.

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CASE No. 1:17-cv-00292-MJS (PC)
ORDER DISMISSING COMPLAINT WITH
PREJUDICE AND WITHOUT LEAVE TO
AMEND
(ECF No. 1)
CLERK TO TERMINATE MOTIONS AND
CLOSE CASE
DISMISSAL COUNTS AS A STRIKE
PURSUANT TO 28 U.S.C. § 1915(g)

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

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rights action brought pursuant to 42 U.S.C. § 1983. He has consented to Magistrate

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Judge jurisdiction. No other parties have appeared in the action.

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His complaint is before the Court for screening.
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

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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).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated and

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(2) that the alleged violation was committed by a person acting under the color of state

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law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d

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1243, 1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that

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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)).

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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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Plaintiff is incarcerated at Pelican Bay State Prison, but complains of acts that

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occurred at Corcoran State Prison. He names the following defendants: (1) CDCR

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Director Scott Kernan, (2) CDCR DRR Director J. Macomber, (3) DRB Member and

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“Chief of CSU” B. Moak, (4) DRB Member and Correctional Counselor I E. Park,

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(5) Correctional Lieutenant M. Lujan, (6) Deputy Attorney General Byron Miller, and

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(7) Magistrate Judge Erica P. Grosjean.

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His allegations may be summarized essentially as follows:

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On September 23, 2016, Plaintiff filed suit against Defendant Kernan in relation to

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his placement in the step down program. See Toscano v. Kernan, No. 1:16-cv-01554-

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EPG (E.D. Cal.) (“Toscano I”). The matter was assigned to the Honorable Erica

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Grosjean, U.S. Magistrate Judge. Judge Grosjean ordered the Office of the Attorney

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General to respond to Plaintiff’s motion for injunctive relief. Judge Grosjean granted

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Defendants’ request to seal documents. She also dismissed Plaintiff’s complaint with

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leave to amend and denied his motion for injunctive relief. Plaintiff filed a motion for

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reconsideration, which was denied by Judge Grosjean. Plaintiff contends that the denial

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violated Federal Rule of Civil Procedure 60 and that Judge Grosjean’s rulings were

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inaccurate.

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Plaintiff filed the instant action on March 2, 2017. The Court takes judicial notice

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of the docket in Toscano I and notes that, on April 17, 2017, Judge Grosjean dismissed

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Plaintiff’s second amended complaint with prejudice and without leave to amend on the

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ground that it failed to state a claim. (Case No. 1:16-cv-01554-EPG, ECF No. 34.)

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Plaintiff seeks injunctive relief in relation to the claims raised in Case No. 1:16-cv-

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01554-EPG, a criminal investigation, a federal investigation, transfer to a different

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institution, and money damages.

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IV.

Analysis

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A.

Judicial Immunity

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Plaintiff alleges that Judge Grosjean erroneously ruled against him in Toscano I.

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Judge Grosjean is entitled to absolute judicial immunity from such claims. See 42 U.S.C.

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§ 1983; In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002), as amended (Sept. 6, 2002).

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Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004) (quoting Bradley v.

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Fisher, 13 Wall. 335, 347 (1871)); Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir.

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2001), as amended on denial of reh’g (Oct. 11, 2001) (quoting Meek v. Cnty. of

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Riverside, 183 F.3d 962, 967 (9th Cir. 1999)).

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B.

Deputy Attorney General Byron Miller

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Defendant Miller represented the defendants in Toscano I by opposing Plaintiff’s

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motion for injunctive relief and by submitting certain documents under seal. Plaintiff does

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not state any violation of his rights arising out of this representation. In any event, these

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actions do not subject Defendant Miller to liability under section 1983. Defendant Miller is

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absolutely immune under Section 1983 for actions taken in defending the State in suits

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brought against it. Bly–Magee v. California, 236 F.3d 1014, 1016 (9th Cir. 2001); Fry v.

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Melaragno, 939 F.2d 832, 835–36 (9th Cir. 1991); Imbler v. Pachtman, 424 U.S. 409,

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431 (1976); Murphy v. Morris 849 F.2d 1101, 1105 (8th Cir.1988).

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C.

Challenges to Case No. 1:16-cv-01554-EPG

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Plaintiff cannot seek relief in this action from orders issued in other cases. To

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obtain review of the decisions issued Toscano I, Plaintiff must file a motion in that case

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or seek appellate review of that judgment.

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D.

Leave to Amend

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In general, a pro se Plaintiff is entitled to leave to amend unless “it appears

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beyond doubt that the plaintiff can prove no set of facts in support of his claim which

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would entitle him to relief.” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984)

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(citation omitted). “Valid reasons for denying leave to amend include undue delay, bad

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faith, prejudice and futility.” Cal. Architectural Bldg. Prod. v. Franciscan Ceramics, 818
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F.2d 1276, 1293 (9th Cir. 1983); Lockman Found. v. Evangelical Alliance Mission, 930

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F.2d 764, 772 (9th Cir. 1991).

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In this instance, the Court finds that amendment of the complaint would be futile.

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Plaintiff cannot herein challenge the rulings in another action, nor can he proceed

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against Defendants who are immune from suit. Leave to amend will be denied.

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V.

Conclusion and Order

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Based on the foregoing, Plaintiff’s complaint does not state a cognizable claim for

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relief and the defects cannot be cured by amendment. Accordingly, it is HEREBY

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ORDERED that:

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1. Plaintiff’s complaint is dismissed with prejudice and without leave to amend for

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failure to state a claim upon which relief may be granted;
2. The Clerk of the Court shall terminate all pending motions and close the case;

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and
3. Dismissal counts as a strike pursuant to the “three strikes” provision set forth

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in 28 U.S.C. § 1915(g).

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IT IS SO ORDERED.
Dated:

April 18, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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