Jones v. Sisto et al

Filing 6

ORDER DISMISSING CASE WITH LEAVE TO AMEND signed by Senior Judge Lloyd D. George on 6/9/11; Amended Complaint due by 7/18/2011. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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W.L. JONES,

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Plaintiff,

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v.

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Case No. 2:08-CV-01382-LDG

D.K. SISTO, et al,

ORDER
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Defendants.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42. U.S.C. §

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1983. The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. Id. § 1915A(a). The court

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must dismiss the complaint or portion thereof if it is frivolous, malicious or fails to state a claim

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upon which relief can be granted or seeks monetary relief from a defendant who is immune from

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such relief. Id. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke

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v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir.

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1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably

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meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at

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327. The critical inquiry is whether a constitutional claim, however inarticulately pleaded, has an

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arguable legal and factual basis. See Jackson v. Ariz., 885 F.2d 639, 640 (9th Cir. 1989); Franklin,

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745 F.2d at 1227.

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A complaint requires only a short and plain statement of the claim showing that the pleader

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is entitled to relief. Fed. R. Civ. P. 8(a)(2). However, a complaint must contain more than a

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“formalistic recitation of the elements of a cause of action;” that is, “factual allegations must be

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enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.

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544, 555 (2007). In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740

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(1976), construe the pleadings in the light most favorable to the plaintiff, and resolve all doubts in

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the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides:

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Every person who, under color of [state law] . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. To state a claim under § 1983, the plaintiff must allege facts sufficient to show
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(1) a person acting “under color of state law” committed the conduct at issue, and (2) the conduct
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deprived the plaintiff of some right, privilege, or immunity protected by the Constitution or laws of
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the United States. Shah v. Cnty. of L.A., 797 F.2d 743 (9th Cir. 1986).
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In this case, Plaintiff’s Complaint fails to state a cognizable claim. A claim under § 1983
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requires an actual connection or link between the conduct of the defendant and the alleged
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unconstitutional deprivation. See generally Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978);
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Rizzo v. Goode, 423 U.S. 362 (1976). When a defendant holds a supervisory position, the causal
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link between the defendant and the claimed constitutional violation must be specifically alleged.
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See Faye v. Stapely, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th
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Cir. 1978), cert denied, 442 U.S. 941 (1979). Vague and conclusory allegations of official
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participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268
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(9th Cir. 1982).Warden Sisto is the only named defendant specifically identified as attempting to
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place the plaintiff “in danger.” Although it may be possible to read the complaint as providing an
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actual link between Calvo’s actions and the blanket identification of “prison officials who
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attempted to place [Plaintiff] in danger,” Plaintiff’s vague and conclusory allegations are
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insufficient to allege a violation. Ivey, 673 F.2d at 268. Accordingly, the allegations are not

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sufficient to show the defendants committed the conduct at issue.

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Even if Plaintiff’s Complaint established an actual connection or link, the Complaint fails

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to state a claim upon which relief can be granted. California Penal Code § 147 is a criminal statute.

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Courts rarely imply a private right of action under a criminal statute, and where a court has done so

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“there was at least a statutory basis for inferring that a civil cause of action of some sort lay in

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favor of someone.” Chrysler Corp v. Brown, 441 U.S. 281, 316 (U.S. 1979) (quoting Court v. Ash,

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422 U.S. 66, 79 (1975)). This provision of the California Penal Code does not create a private

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cause of action. See, e.g., Young v. Visalia, 987 F. Supp. 2d 1155, 1167 (E.D. Cal. 2010) (finding

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no case that has allowed California Penal Code § 147 to form the basis of a civil lawsuit).

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Additionally, 42 U.S.C. § 1983 does not provide a cause of action for violations of state law.

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Lovell by & Through Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 1996).

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Plaintiff does not provide an alternative basis for inferring that California Penal Code § 147

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implies a private right of action. Plaintiff appears to suggest that because § 147 creates criminal

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liability, civil liability is necessarily implied. This assertion is inaccurate. Chrysler Corp, 441 U.S.

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at 316; Young, 987 F. Supp. 2d at 1167.

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Plaintiff’s second claim regarding cruel and unusual punishment does not rise to the level

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of a constitutional violation. “After incarceration, only the unnecessary and wanton infliction of

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pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Wilson v.

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Seiter, 501 U.S. 294, 298 (1991) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). Plaintiff

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does not claim that pain was inflicted, much less that it was done unnecessarily or wantonly.

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Plaintiff simply asserts that the Warden and other prison officials attempted to place him in

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danger. As such, Plaintiff’s claim fails to assert a necessary element of an Eighth Amendment

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violation.

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Accordingly,

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THE COURT HEREBY ORDERS that Plaintiff’s Complaint (#1) is dismissed.

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THE COURT FURTHER ORDERS that Plaintiff is granted thirty days from the date of

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service of this order to file an amended complaint that complies with the requirements of the Civil

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Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended

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complaint must bear the docket number assigned to this case and must be labeled “Amended

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Complaint”; failure to file an amended complaint in accordance with this order may result in

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dismissal.

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DATED this _____ day of June, 2011.

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______________________________
Lloyd D. George
United States District Judge

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