Smith v. Grosso

Filing 7

ORDER signed by Magistrate Judge Kimberly J. Mueller on 4/27/2010 ORDERING that that plaintiff's 2 motion to proceed in forma pauperis is GRANTED. IT IS RECOMMENDED that the complaint be dismissed. Objections due within 21 days after being served with these findings and recommendations.(Duong, D)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. DR. GEORGE JOSEPH GROSSO, Defendants. / ORDER AND FINDINGS AND RECOMMENDATIONS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA MARK ANTHONY SMITH, Plaintiff, No. CIV S-10-846 MCE KJM P

Plaintiff is a civilly committed inmate proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. The court is required to screen complaints brought by those proceeding in forma pauperis. 28 U.S.C. § 1915(e)(2). The court must dismiss a complaint or portion thereof if the person has raised claims that are legally "frivolous or malicious," 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. § 1915(e)(2)(B). 1

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 122728 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227. In order to avoid dismissal for failure to state a claim a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Plaintiff alleges that defendant and the Department of Mental Health undertook an illegal evaluation in connection with plaintiff's commitment as a sexually violent predator. He also contends that he has been found not to meet the criteria for commitment by several evaluators. He asks for a new evaluation and a new, fair trial. In Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138-41 (9th Cir. 2005), the court held that a civilly committed person may not proceed with a civil rights action that would necessarily imply the invalidity of his commitment if successful. In Huftile, as in this case, the 2

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plaintiff challenged the method in which he was evaluated for his SVP commitment. Id. at 1140. As in Huftile, if plaintiff succeeds in showing that the evaluation was illegal or shows that the reliance on his prior convictions was improper, the validity of his commitment would be called into question. This complaint therefore fails to state a claim. IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis (Docket No. 2) is granted. IT IS RECOMMENDED that the complaint be dismissed. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twentyone days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: April 27, 2010.

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