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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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AMORY DOMINGUEZ,
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Plaintiff,
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v.

CASE NO. 1:17-cv-01403-MJS (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND
(ECF NO. 1)

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QUEEN VICTORIA MORGAN,
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Defendant.
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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. 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

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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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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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Plaintiffs must set forth “sufficient factual matter, accepted as true, to state a claim to

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relief that is plausible on its face.” Iqbal, 556 U.S. at 678. Facial plausibility demands

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more than the mere possibility that a defendant committed misconduct and, while factual

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allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 677-78.

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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 section 1983, a plaintiff must allege two essential elements: (1) that a

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right secured by the Constitution or laws of the United States was violated and (2) that

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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

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(9th Cir. 1987).

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Under section 1983 the Plaintiff must demonstrate that each defendant personally

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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

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2002). This requires the presentation of factual allegations sufficient to state a plausible

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claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962,

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969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to

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have their pleadings liberally construed and to have any doubt resolved in their favor,

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Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless,

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the mere possibility of misconduct falls short of meeting the plausibility standard. Iqbal,
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556 U.S. at 678; Moss, 572 F.3d at 969.

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III.

Plaintiff’s Allegations

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Plaintiff is incarcerated at California Medical Facility in Vacaville, California. He

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appears to complain of acts that occurred at that institution and at “Correction Corcrin,”

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which the Court interprets as a reference to California State Prison, Corcoran. Plaintiff

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names as Defendants (1) Queen Victoria Morgan, (2) Senior Sherry Goldberg, (3) Ice

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Immigration, and (4) Jose Fuentes Diaz, a master builder.

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Plaintiff’s

factual

allegations

are

brief,

quite

disjointed

and

essentially

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incomprehensible. They do contain brief references to access to counsel, access to

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courts, false imprisonment, freedom of religious practice, and excessive force issues, but

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the Court is unable even to discern therefrom what Plaintiff may intend to complain about

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or anticipate what relief he seeks.

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IV.

Analysis

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A.

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It does seem that Plaintiff would like the Court to appoint counsel to represent

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Request for Counsel

him.

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Plaintiff does not have a constitutional right to appointed counsel in this action,

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Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an

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attorney to represent Plaintiff pursuant to 28 U.S.C. ' 1915(e)(1), Mallard v. United

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States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). In

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certain exceptional circumstances the Court may request the voluntary assistance of

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counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. However, without a

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reasonable method of securing and compensating counsel, the Court will seek volunteer

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counsel only in the most serious and exceptional cases. In determining whether

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Aexceptional circumstances exist, the district court must evaluate both the likelihood of

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success of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in

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light of the complexity of the legal issues involved.@ Id. (internal quotation marks and
citations omitted).
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In the present case, though Plaintiff has failed to demonstrate an ability to

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articulate his claims, he has not presented sufficient information to enable the court to

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determine if he might conceivably have any potentially viable claims, much less evaluate

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the possibility he has any likelihood of succeeding on any of them. The Court does not

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find the existence of any exceptional circumstances to warrant appointment of counsel.

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Constitutional law violations are pursued by prisoners regularly and frequently without

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the assistance of counsel. Despite the inarticulate nature of Plaintiff’s current pleading,

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all he needs do to have his case considered is outline for the court who did what that he

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feels violated one of his constitutional rights, when he did it, and how Plaintiff was injured

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as a result; a lawyer is not required to do that.

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Plaintiff=s request for counsel will therefore be denied without prejudice.

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B.

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Plaintiff’s filing identifies no unconstitutional acts or omissions by any Defendant.

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He simply strings together thoughts and statements that have no identifiable relation to

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one another or to any Defendant.

Rule 8

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Plaintiff’s complaint will therefore be dismissed for violating Federal Rule of Civil

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Procedure 8(a) (“A pleading that states a claim for relief must contain . . . a short and

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plain statement of the claim showing the pleader is entitled to relief [and] a demand for

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the relief sought.”) Plaintiff will be given an opportunity to amend. Should he choose to

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amend, he must, at the very least, set out what it is he feels each Defendant did or failed

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to do, when, that violated his constitutional rights and caused him some harm; he must

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provide enough information to enable the Court to evaluate whether he may have a

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cognizable claim or claims.

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The Court will, nevertheless, set out below the legal criteria for claims Plaintiff

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mentions in his present pleading may have intended to pursue based on the brief

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statements he has made.

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i.

First Amendment Free Exercise

“Inmates clearly retain protections afforded by the First Amendment, including its
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directive that no law shall prohibit the free exercise of religion.” O’Lone v. Estate of

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Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). In order to establish a cause of

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action under the Free Exercise Clause, Plaintiff must show that a restriction substantially

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burdened the practice of his religion by preventing him from engaging in conduct which

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he sincerely believes is consistent with his faith. Shakur v. Schriro, 514 F.3d 878, 884-85

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(9th Cir. 2008).

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Additionally, Plaintiff must show that the restriction is not required to maintain

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institutional security and preserve internal order and discipline. See Pierce v. Cnty. of

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Orange, 526 F.3d 1190, 1209 (9th Cir. 2008). Restrictions on access to “religious

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opportunities” must be found reasonable in light of four factors: (1) whether there is a

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“valid, rational connection” between the regulation and a legitimate government interest

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put forward to justify it; (2) “whether there are alternative means of exercising the right”

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that remain open to Plaintiff; (3) whether accommodation of the asserted constitutional

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right would have a significant impact on staff and other detainees; and (4) whether ready

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alternatives are absent (bearing on the reasonableness of the regulation). Turner v.

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Safley, 482 U.S. 78, 89-90 (1987); see also Beard v. Banks, 548 U.S. 521 (2006); Mauro

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v. Arpaio, 188 F.3d 1054, 1058-59 (9th Cir. 1999) (en banc). Shakur v. Schriro, 514 F.3d

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878, 884-85 (9th Cir. 2008). Prisoners are not required to “objectively show that a central

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tenet of [their] faith is burdened” in order to raise a viable free exercise claim. Id. at 884.

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ii.

Access to Courts

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Plaintiff has a constitutional right of access to the courts, and prison officials may

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not actively interfere with his right to litigate. Silva v. Di Vittorio, 658 F.3d 1090, 1101-02

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(9th Cir. 2011). The right is limited to direct criminal appeals, habeas petitions, and civil

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rights actions. Lewis v. Casey, 518 U.S. 343, 354 (1996). Claims for denial of access to

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the courts may arise from the frustration or hindrance of “a litigating opportunity yet to be

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gained” (forward-looking access claim) or from the loss of a meritorious suit that cannot

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now be tried (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15

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(2002). A plaintiff must show that he suffered an “actual injury” i.e., prejudice with
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respect to contemplated or existing litigation, such as the inability to meet a filing

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deadline or present a non-frivolous claim. Lewis, 518 U.S. at 348-49. An “actual injury” is

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one that hinders the plaintiff’s ability to pursue a legal claim. Id. at 351.

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iii.

Excessive Force

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The unnecessary and wanton infliction of pain violates the Cruel and Unusual

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Punishments Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5

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(1992) (citations omitted). For claims arising out of the use of excessive physical force,

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the issue is “whether force was applied in a good-faith effort to maintain or restore

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discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34,

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37 (2010) (per curiam) (citing Hudson, 503 U.S. at 7) (internal quotation marks omitted).

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Not “every malevolent touch by a prison guard gives rise to a federal cause of action.”

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Hudson, 503 U.S. at 9. “The Eighth Amendment's prohibition of cruel and unusual

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punishments necessarily excludes from constitutional recognition de minimis uses of

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physical force, provided that the use of force is not of a sort repugnant to the conscience

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of mankind.” Id. at 9-10 (internal quotation marks omitted); see also Oliver v. Keller, 289

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F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de

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minimis uses of force, not de minimis injuries).

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Although de minimis uses of force do not violate the Constitution, the malicious

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and sadistic use of force to cause harm always violates contemporary standards of

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decency, regardless of whether or not significant injury is evident. Wilkins, 559 U.S. at

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37-8 (citing Hudson, 503 U.S. at 9-10) (quotation marks omitted). In order to determine

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whether the forced used was sadistic and malicious, the Ninth Circuit has "identified five

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factors. . . '(1) the extent of injury suffered by an inmate; (2) the need for application of

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force; (3) the relationship between that need and the amount of force used; (4) the threat

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reasonably perceived by the responsible officials; and (5) any efforts made to temper the

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severity of a forceful response.'" Furnace v. Sullivan, 705 F.3d 1021, 1028-29 (9th Cir.

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2013), quoting Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003).

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iv.

False Imprisonment

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This Court may exercise jurisdiction over a state law claim pursuant to 28 U.S.C.

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' 1367(a), which states that in any civil action in which the district court has original

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jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in

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the action within such original jurisdiction that they form part of the same case or

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controversy under Article III [of the Constitution],” except as provided in subsections (b)

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and (c). “[Once judicial power exists under ' 1367(a), retention of supplemental

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jurisdiction over state law claims under ' 1367(c) is discretionary.” ACI v. Varian Assoc.,

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Inc., 114 F.3d 999, 1000 (9th Cir. 1997). The Supreme Court has cautioned that “if the

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federal claims are dismissed before trial, . . . the state claims should be dismissed as

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well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966).

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To state a tort claim against a public employee, a plaintiff must allege compliance

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with the Tort Claims Act. State v. Super. Ct. of Kings Cty. (Bodde), 90 P.3d 116, 124

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(2004); Mangold v. California Pub. Utils. Comm=n, 67 F.3d 1470, 1477 (9th Cir. 1995);

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Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). The Tort

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Claims Act requires that a tort claim against a public entity or its employees be

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presented to the California Victim Compensation and Government Claims Board (“the

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Board”) no more than six months after the cause of action accrues. Cal. Govt. Code ''

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905.2, 910, 911.2, 945.4, 950-950.2 (West 2009). Presentation of a written claim, and

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action on or rejection of the claim are conditions precedent to suit. State v. Super. Ct.,

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90 P.3d at 124; Mangold, 67 F.3d at 1477. An action must be commenced within six

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months after the claim is acted upon or is deemed to be rejected. Cal. Govt. Code '

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945.6; Moore v. Twomey, 16 Cal. Rptr. 3d 163 (Cal. Ct. App. 2004).

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Under California law, false imprisonment is the “‘unlawful violation of the personal

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liberty of another.’” Martinez v. City of Los Angeles, 141 F.3d 1373, 1379 (9th Cir. 1998)

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(quoting Asgari v. City of Los Angeles, 15 Cal. 4th 744, 757, 63 Cal. Rptr. 2d 842, 937

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P.2d 273 (1997)). The elements of false imprisonment are: “(1) the nonconsensual,

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intentional confinement of a person, (2) without lawful privilege, and (3) for an
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appreciable period of time, however brief.” Easton v. Sutter Coast Hospital, 80 Cal. App.

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4th 484, 496 (2000) (citation omitted).

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C.

Heck

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Although unclear, Plaintiff may also be wishing to challenge his confinement.

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The exclusive method for challenging the fact or duration of Plaintiff’s confinement

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is by filing a petition for a writ of habeas corpus. Wilkinson v. Dotson, 544 U.S. 74, 78

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(2005). See 28 U.S.C. § 2254(a). Such claims may not be brought in a section 1983

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action. Nor may Plaintiff seek to invalidate the fact or duration of his confinement

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indirectly through a judicial determination that necessarily implies the unlawfulness of the

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State’s custody. Wilkinson, 544 U.S. at 81. A section 1983 action is barred, no matter the

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relief sought, if success in that action would necessarily demonstrate the invalidity of

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confinement or its duration. Id. at 81-82; Heck v. Humphrey, 512 U.S. 477, 489 (1994)

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(unless and until favorable termination of the conviction or sentence, no cause of action

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under section 1983 exists).

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To the extent Plaintiff’s claims directly challenge his custody, he may not bring

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them in a section 1983 action until his conviction has been “reversed on direct appeal,

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expunged by executive order, declared invalid by a state tribunal authorized to make

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such determination, or called into question by a federal court's issuance of a writ of

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habeas corpus.” Heck, 512 U.S. at 487. He instead must pursue his claims in an action

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for a writ of habeas corpus.

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V.

Conclusion and Order

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Plaintiff’s complaint does not state a cognizable claim for relief. The Court will

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grant Plaintiff an opportunity to file an amended complaint to cure noted defects. Noll v.

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If Plaintiff does not wish to amend, he

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may instead file a notice of voluntary dismissal, and the action then will be terminated by

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operation of law. Fed. R. Civ. P. 41(a)(1)(A)(i). Alternatively, Plaintiff may forego

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amendment and notify the Court that he wishes to stand on his complaint. See Edwards

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v. Marin Park, Inc., 356 F.3d 1058, 1064-65 (9th Cir. 2004) (plaintiff may elect to forego
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amendment). If the last option is chosen, the undersigned will issue findings and

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recommendations to dismiss the complaint without leave to amend, Plaintiff will have an

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opportunity to object, and the matter will be decided by a District Judge. No further

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opportunity to amend will be given by the undersigned.

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If Plaintiff chooses to amend, he must demonstrate that the alleged acts resulted

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in a deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set

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forth “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678

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

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named Defendant personally participated in a deprivation of his rights. Jones v. Williams,

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297 F.3d 930, 934 (9th Cir. 2002). Plaintiff should note that although he has been given

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the opportunity to amend, it is not for the purposes of adding new claims. George v.

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Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff should carefully read this screening

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order and focus his efforts on 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

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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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Plaintiff’s complaint is dismissed with leave to amend;

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2.

The Clerk’s Office shall send Plaintiff a blank civil rights complaint form and
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a copy of his complaint, filed October 18, 2017;
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Within thirty (30) days from the date of service of this order, Plaintiff must

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file either a first amended complaint curing the deficiencies identified by the

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Court in this order, a notice of voluntary dismissal, or a notice of election to

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stand on the complaint; and

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4.

If Plaintiff fails to comply with this order, the Court will recommend the

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action be dismissed, with prejudice, for failure to obey a court order and

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failure to state a claim, subject to the “three strikes” provision set forth in in

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28 U.S.C. § 1915(g).

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IT IS SO ORDERED.
Dated:

November 21, 2017

/s/

UNITED STATES MAGISTRATE JUDGE

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Michael J. Seng

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