Dominguez v. Morgan et al

Filing 12

ORDER DISMISSING 1 Complaint WITH LEAVE TO AMEND; Amended Complaint due within Thirty (30) Days signed by Magistrate Judge Michael J. Seng on 11/21/2017. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 AMORY DOMINGUEZ, 11 Plaintiff, 12 v. CASE NO. 1:17-cv-01403-MJS (PC) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF NO. 1) 13 QUEEN VICTORIA MORGAN, 14 Defendant. 15 AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS 16 17 18 19 20 21 22 23 24 25 26 27 28 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. Plaintiff’s complaint (ECF No.1) is before the Court for screening. I. Screening Requirement The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which 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 thereof, that may have been paid, the court shall dismiss the case at any time if the court 1 determines that . . . the action or appeal . . . fails to state a claim upon which relief may 2 be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 3 II. Pleading Standard 4 A complaint must contain “a short and plain statement of the claim showing that 5 the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations 6 are not required, but “[t]hreadbare recitals of the elements of a cause of action, 7 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 8 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 9 Plaintiffs must set forth “sufficient factual matter, accepted as true, to state a claim to 10 relief that is plausible on its face.” Iqbal, 556 U.S. at 678. Facial plausibility demands 11 more than the mere possibility that a defendant committed misconduct and, while factual 12 allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 677-78. 13 Section 1983 “provides a cause of action for the deprivation of any rights, 14 privileges, or immunities secured by the Constitution and laws of the United States.” 15 Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). To 16 state a claim under section 1983, a plaintiff must allege two essential elements: (1) that a 17 right secured by the Constitution or laws of the United States was violated and (2) that 18 the alleged violation was committed by a person acting under the color of state law. See 19 West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 20 (9th Cir. 1987). 21 Under section 1983 the Plaintiff must demonstrate that each defendant personally 22 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 23 2002). This requires the presentation of factual allegations sufficient to state a plausible 24 claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 25 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to 26 have their pleadings liberally construed and to have any doubt resolved in their favor, 27 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless, 28 the mere possibility of misconduct falls short of meeting the plausibility standard. Iqbal, 2 1 556 U.S. at 678; Moss, 572 F.3d at 969. 2 III. Plaintiff’s Allegations 3 Plaintiff is incarcerated at California Medical Facility in Vacaville, California. He 4 appears to complain of acts that occurred at that institution and at “Correction Corcrin,” 5 which the Court interprets as a reference to California State Prison, Corcoran. Plaintiff 6 names as Defendants (1) Queen Victoria Morgan, (2) Senior Sherry Goldberg, (3) Ice 7 Immigration, and (4) Jose Fuentes Diaz, a master builder. 8 Plaintiff’s factual allegations are brief, quite disjointed and essentially 9 incomprehensible. They do contain brief references to access to counsel, access to 10 courts, false imprisonment, freedom of religious practice, and excessive force issues, but 11 the Court is unable even to discern therefrom what Plaintiff may intend to complain about 12 or anticipate what relief he seeks. 13 IV. Analysis 14 A. 15 It does seem that Plaintiff would like the Court to appoint counsel to represent 16 Request for Counsel him. 17 Plaintiff does not have a constitutional right to appointed counsel in this action, 18 Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an 19 attorney to represent Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1), Mallard v. United 20 States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). In 21 certain exceptional circumstances the Court may request the voluntary assistance of 22 counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. However, without a 23 reasonable method of securing and compensating counsel, the Court will seek volunteer 24 counsel only in the most serious and exceptional cases. In determining whether 25 Aexceptional circumstances exist, the district court must evaluate both the likelihood of 26 success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in 27 28 light of the complexity of the legal issues involved.@ Id. (internal quotation marks and citations omitted). 3 1 In the present case, though Plaintiff has failed to demonstrate an ability to 2 articulate his claims, he has not presented sufficient information to enable the court to 3 determine if he might conceivably have any potentially viable claims, much less evaluate 4 the possibility he has any likelihood of succeeding on any of them. The Court does not 5 find the existence of any exceptional circumstances to warrant appointment of counsel. 6 Constitutional law violations are pursued by prisoners regularly and frequently without 7 the assistance of counsel. Despite the inarticulate nature of Plaintiff’s current pleading, 8 all he needs do to have his case considered is outline for the court who did what that he 9 feels violated one of his constitutional rights, when he did it, and how Plaintiff was injured 10 as a result; a lawyer is not required to do that. 11 Plaintiff=s request for counsel will therefore be denied without prejudice. 12 B. 13 Plaintiff’s filing identifies no unconstitutional acts or omissions by any Defendant. 14 He simply strings together thoughts and statements that have no identifiable relation to 15 one another or to any Defendant. Rule 8 16 Plaintiff’s complaint will therefore be dismissed for violating Federal Rule of Civil 17 Procedure 8(a) (“A pleading that states a claim for relief must contain . . . a short and 18 plain statement of the claim showing the pleader is entitled to relief [and] a demand for 19 the relief sought.”) Plaintiff will be given an opportunity to amend. Should he choose to 20 amend, he must, at the very least, set out what it is he feels each Defendant did or failed 21 to do, when, that violated his constitutional rights and caused him some harm; he must 22 provide enough information to enable the Court to evaluate whether he may have a 23 cognizable claim or claims. 24 The Court will, nevertheless, set out below the legal criteria for claims Plaintiff 25 mentions in his present pleading may have intended to pursue based on the brief 26 statements he has made. 27 28 i. First Amendment Free Exercise “Inmates clearly retain protections afforded by the First Amendment, including its 4 1 directive that no law shall prohibit the free exercise of religion.” O’Lone v. Estate of 2 Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). In order to establish a cause of 3 action under the Free Exercise Clause, Plaintiff must show that a restriction substantially 4 burdened the practice of his religion by preventing him from engaging in conduct which 5 he sincerely believes is consistent with his faith. Shakur v. Schriro, 514 F.3d 878, 884-85 6 (9th Cir. 2008). 7 Additionally, Plaintiff must show that the restriction is not required to maintain 8 institutional security and preserve internal order and discipline. See Pierce v. Cnty. of 9 Orange, 526 F.3d 1190, 1209 (9th Cir. 2008). Restrictions on access to “religious 10 opportunities” must be found reasonable in light of four factors: (1) whether there is a 11 “valid, rational connection” between the regulation and a legitimate government interest 12 put forward to justify it; (2) “whether there are alternative means of exercising the right” 13 that remain open to Plaintiff; (3) whether accommodation of the asserted constitutional 14 right would have a significant impact on staff and other detainees; and (4) whether ready 15 alternatives are absent (bearing on the reasonableness of the regulation). Turner v. 16 Safley, 482 U.S. 78, 89-90 (1987); see also Beard v. Banks, 548 U.S. 521 (2006); Mauro 17 v. Arpaio, 188 F.3d 1054, 1058-59 (9th Cir. 1999) (en banc). Shakur v. Schriro, 514 F.3d 18 878, 884-85 (9th Cir. 2008). Prisoners are not required to “objectively show that a central 19 tenet of [their] faith is burdened” in order to raise a viable free exercise claim. Id. at 884. 20 ii. Access to Courts 21 Plaintiff has a constitutional right of access to the courts, and prison officials may 22 not actively interfere with his right to litigate. Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 23 (9th Cir. 2011). The right is limited to direct criminal appeals, habeas petitions, and civil 24 rights actions. Lewis v. Casey, 518 U.S. 343, 354 (1996). Claims for denial of access to 25 the courts may arise from the frustration or hindrance of “a litigating opportunity yet to be 26 gained” (forward-looking access claim) or from the loss of a meritorious suit that cannot 27 now be tried (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15 28 (2002). A plaintiff must show that he suffered an “actual injury” i.e., prejudice with 5 1 respect to contemplated or existing litigation, such as the inability to meet a filing 2 deadline or present a non-frivolous claim. Lewis, 518 U.S. at 348-49. An “actual injury” is 3 one that hinders the plaintiff’s ability to pursue a legal claim. Id. at 351. 4 iii. Excessive Force 5 The unnecessary and wanton infliction of pain violates the Cruel and Unusual 6 Punishments Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 7 (1992) (citations omitted). For claims arising out of the use of excessive physical force, 8 the issue is “whether force was applied in a good-faith effort to maintain or restore 9 discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 10 37 (2010) (per curiam) (citing Hudson, 503 U.S. at 7) (internal quotation marks omitted). 11 Not “every malevolent touch by a prison guard gives rise to a federal cause of action.” 12 Hudson, 503 U.S. at 9. “The Eighth Amendment's prohibition of cruel and unusual 13 punishments necessarily excludes from constitutional recognition de minimis uses of 14 physical force, provided that the use of force is not of a sort repugnant to the conscience 15 of mankind.” Id. at 9-10 (internal quotation marks omitted); see also Oliver v. Keller, 289 16 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de 17 minimis uses of force, not de minimis injuries). 18 Although de minimis uses of force do not violate the Constitution, the malicious 19 and sadistic use of force to cause harm always violates contemporary standards of 20 decency, regardless of whether or not significant injury is evident. Wilkins, 559 U.S. at 21 37-8 (citing Hudson, 503 U.S. at 9-10) (quotation marks omitted). In order to determine 22 whether the forced used was sadistic and malicious, the Ninth Circuit has "identified five 23 factors. . . '(1) the extent of injury suffered by an inmate; (2) the need for application of 24 force; (3) the relationship between that need and the amount of force used; (4) the threat 25 reasonably perceived by the responsible officials; and (5) any efforts made to temper the 26 severity of a forceful response.'" Furnace v. Sullivan, 705 F.3d 1021, 1028-29 (9th Cir. 27 2013), quoting Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). 28 6 1 iv. False Imprisonment 2 This Court may exercise jurisdiction over a state law claim pursuant to 28 U.S.C. 3 ' 1367(a), which states that in any civil action in which the district court has original 4 jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in 5 the action within such original jurisdiction that they form part of the same case or 6 controversy under Article III [of the Constitution],” except as provided in subsections (b) 7 and (c). “[Once judicial power exists under ' 1367(a), retention of supplemental 8 jurisdiction over state law claims under ' 1367(c) is discretionary.” ACI v. Varian Assoc., 9 Inc., 114 F.3d 999, 1000 (9th Cir. 1997). The Supreme Court has cautioned that “if the 10 federal claims are dismissed before trial, . . . the state claims should be dismissed as 11 well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). 12 To state a tort claim against a public employee, a plaintiff must allege compliance 13 with the Tort Claims Act. State v. Super. Ct. of Kings Cty. (Bodde), 90 P.3d 116, 124 14 (2004); Mangold v. California Pub. Utils. Comm=n, 67 F.3d 1470, 1477 (9th Cir. 1995); 15 Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). The Tort 16 Claims Act requires that a tort claim against a public entity or its employees be 17 presented to the California Victim Compensation and Government Claims Board (“the 18 Board”) no more than six months after the cause of action accrues. Cal. Govt. Code '' 19 905.2, 910, 911.2, 945.4, 950-950.2 (West 2009). Presentation of a written claim, and 20 action on or rejection of the claim are conditions precedent to suit. State v. Super. Ct., 21 90 P.3d at 124; Mangold, 67 F.3d at 1477. An action must be commenced within six 22 months after the claim is acted upon or is deemed to be rejected. Cal. Govt. Code ' 23 945.6; Moore v. Twomey, 16 Cal. Rptr. 3d 163 (Cal. Ct. App. 2004). 24 Under California law, false imprisonment is the “‘unlawful violation of the personal 25 liberty of another.’” Martinez v. City of Los Angeles, 141 F.3d 1373, 1379 (9th Cir. 1998) 26 (quoting Asgari v. City of Los Angeles, 15 Cal. 4th 744, 757, 63 Cal. Rptr. 2d 842, 937 27 P.2d 273 (1997)). The elements of false imprisonment are: “(1) the nonconsensual, 28 intentional confinement of a person, (2) without lawful privilege, and (3) for an 7 1 appreciable period of time, however brief.” Easton v. Sutter Coast Hospital, 80 Cal. App. 2 4th 484, 496 (2000) (citation omitted). 3 C. Heck 4 Although unclear, Plaintiff may also be wishing to challenge his confinement. 5 The exclusive method for challenging the fact or duration of Plaintiff’s confinement 6 is by filing a petition for a writ of habeas corpus. Wilkinson v. Dotson, 544 U.S. 74, 78 7 (2005). See 28 U.S.C. § 2254(a). Such claims may not be brought in a section 1983 8 action. Nor may Plaintiff seek to invalidate the fact or duration of his confinement 9 indirectly through a judicial determination that necessarily implies the unlawfulness of the 10 State’s custody. Wilkinson, 544 U.S. at 81. A section 1983 action is barred, no matter the 11 relief sought, if success in that action would necessarily demonstrate the invalidity of 12 confinement or its duration. Id. at 81-82; Heck v. Humphrey, 512 U.S. 477, 489 (1994) 13 (unless and until favorable termination of the conviction or sentence, no cause of action 14 under section 1983 exists). 15 To the extent Plaintiff’s claims directly challenge his custody, he may not bring 16 them in a section 1983 action until his conviction has been “reversed on direct appeal, 17 expunged by executive order, declared invalid by a state tribunal authorized to make 18 such determination, or called into question by a federal court's issuance of a writ of 19 habeas corpus.” Heck, 512 U.S. at 487. He instead must pursue his claims in an action 20 for a writ of habeas corpus. 21 V. Conclusion and Order 22 Plaintiff’s complaint does not state a cognizable claim for relief. The Court will 23 grant Plaintiff an opportunity to file an amended complaint to cure noted defects. Noll v. 24 Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff does not wish to amend, he 25 may instead file a notice of voluntary dismissal, and the action then will be terminated by 26 operation of law. Fed. R. Civ. P. 41(a)(1)(A)(i). Alternatively, Plaintiff may forego 27 amendment and notify the Court that he wishes to stand on his complaint. See Edwards 28 v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may elect to forego 8 1 amendment). If the last option is chosen, the undersigned will issue findings and 2 recommendations to dismiss the complaint without leave to amend, Plaintiff will have an 3 opportunity to object, and the matter will be decided by a District Judge. No further 4 opportunity to amend will be given by the undersigned. 5 If Plaintiff chooses to amend, he must demonstrate that the alleged acts resulted 6 in a deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set 7 forth “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 8 (quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff must also demonstrate that each 9 named Defendant personally participated in a deprivation of his rights. Jones v. Williams, 10 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff should note that although he has been given 11 the opportunity to amend, it is not for the purposes of adding new claims. George v. 12 Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff should carefully read this screening 13 order and focus his efforts on curing the deficiencies set forth above. 14 Finally, Plaintiff is advised that Local Rule 220 requires that an amended 15 complaint be complete in itself without reference to any prior pleading. As a general rule, 16 an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 17 55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no 18 longer serves any function in the case. Therefore, in an amended complaint, as in an 19 original complaint, each claim and the involvement of each defendant must be 20 sufficiently alleged. The amended complaint should be clearly and boldly titled “First 21 Amended Complaint,” refer to the appropriate case number, and be an original signed 22 under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P. 23 8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a 24 right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations 25 omitted). 26 Accordingly, it is HEREBY ORDERED that: 27 1. Plaintiff’s complaint is dismissed with leave to amend; 28 2. The Clerk’s Office shall send Plaintiff a blank civil rights complaint form and 9 1 2 a copy of his complaint, filed October 18, 2017; 3. Within thirty (30) days from the date of service of this order, Plaintiff must 3 file either a first amended complaint curing the deficiencies identified by the 4 Court in this order, a notice of voluntary dismissal, or a notice of election to 5 stand on the complaint; and 6 4. If Plaintiff fails to comply with this order, the Court will recommend the 7 action be dismissed, with prejudice, for failure to obey a court order and 8 failure to state a claim, subject to the “three strikes” provision set forth in in 9 28 U.S.C. § 1915(g). 10 11 12 13 IT IS SO ORDERED. Dated: November 21, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Michael J. Seng 10

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