Kelso v. Kennycutt et al

Filing 22

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/11/2012 RECOMMENDING that the 16 amended complaint be dismissed without leave to amend and the clerk be directed to close the case. Referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN DONALD KELSO,
Plaintiff,

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vs.

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No. CIV S-11-0674 MCE EFB P

KENNYCUTT, et al.,
Defendants.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff, an inmate confined at Solano County Jail, filed this pro se civil rights action

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under 42 U.S.C. § 1983. After a dismissal pursuant to 28 U.S.C. § 1915A(a), plaintiff has filed

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an amended complaint. For the reasons stated below, the amended complaint should be

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dismissed without leave to amend.

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I.

Screening Standards and Requirements

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).
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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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Furthermore, a claim upon which the court can grant relief has facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to

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the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal

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Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain

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statement of the claim showing that the pleader is entitled to relief, in order to give the defendant

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fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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II.

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Background
In dismissing the original complaint with leave to amend pursuant to § 1915A, the court

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noted that plaintiff previously filed a complaint in this district concerning his state criminal

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conviction, and that plaintiff had been informed that those claims must be challenged in a

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petition for writ of habeas corpus. Sept. 19, 2011 Order, Dckt. No. 11. This court further

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informed plaintiff that his challenges to his state criminal proceedings must be pursued by

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habeas. Preiser v. Rodriguez, 411 U.S. 475, 490 (1973) (“Congress has determined that habeas

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corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of

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their confinement, and that specific determination must override the general terms of § 1983.”).
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The court also addressed plaintiff’s “motion for a change of venue,” wherein plaintiff

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alleged that Judge Kennycutt and other unnamed judges of the Solano Superior Court had taken

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various adverse actions against him in criminal proceedings over the past many years. Plaintiff

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asked for an order “changing venue,” presumably to transfer his state court case to a different

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state trial court. That motion was denied because this court lacks jurisdiction to issue a writ

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compelling the state court to transfer plaintiff’s case. Dckt. Nos. 11, 18. And in dismissing

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plaintiff’s complaint with leave to amend, the court again informed plaintiff that it lacked

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jurisdiction to issue orders compelling a state trial court to take some action in his case. Demos

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v. U.S. Dist. Ct., 925 F.2d 1160, 1161-62 (9th Cir. 1991) (federal courts lack jurisdiction to issue

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writs compelling state courts to take or refrain from taking some action).

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The court also informed plaintiff that an amended complaint must show that the federal

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court has jurisdiction and that plaintiff’s action is brought in the right place, that plaintiff is

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entitled to relief if plaintiff’s allegations are true, and must contain a request for particular relief.

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Dckt. No. 11. The court stated that plaintiff must identify as a defendant only persons who

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personally participated in a substantial way in depriving plaintiff of a federal constitutional right

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and that he must inform the court how each defendant participated in any alleged deprivation of

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his constitutional rights. The court informed plaintiff that to state a claim under 42 U.S.C.

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§ 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution

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or laws of the United States was violated, and (2) that the alleged violation was committed by a

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person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Further, the

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court warned plaintiff that his amended complaint should not include claims seeking his

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immediate or speedier release from state custody, as such claims must be brought in a habeas

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corpus petition.

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III.

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Amended Complaint
Plaintiff’s amended complaint does not correct the deficiencies identified by the court’s

initial screening order. In the amended complaint, plaintiff names “Judge Kennycutt” and the
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“Solano County Courthouse” as defendants. Dckt. No. 16 at 2. Though barely legible, plaintiff

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appears to allege as follows:

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My right to a fair trial at all phasings of the proceeding, and the judges for 10
years making me use their choice of attorneys all Jewish & paid $400.00 by the
hour. Rather than allowing myself to act pro se or use a public defender and of
the Solano Public defenders officer. More on this enclosed in the motion for a
change of venue.

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Dckt. No. 16 at 5. Plaintiff does not identify any claims for relief in the complaint, nor does he

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link any defendant to an alleged violation of his federal rights. The allegations in plaintiff's

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complaint are so vague and conclusory that the court cannot determine whether the current

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action is frivolous or fails to state a claim for relief. To the extend comprehensible, plaintiff

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appears to allege he was denied a fair trial. As plaintiff has been made aware, a challenge to the

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validity of the fact or length of confinement must be made through a petition for writ of habeas

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corpus. Preiser, 411 U.S. at, 490. If plaintiff is seeking to challenge the constitutionality of his

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current confinement, he must proceed by commencing a new action through filing a petition for

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writ of habeas corpus under 28 U.S.C. § 2254.

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Despite an opportunity to amend, plaintiff appears to be unable to state a cognizable

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claim for relief. Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (“Under Ninth Circuit case

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law, district courts are only required to grant leave to amend if a complaint can possibly be

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saved. Courts are not required to grant leave to amend if a complaint lacks merit entirely.”); see

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also Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A] district court should grant

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leave to amend even if no request to amend the pleading was made, unless it determines that the

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pleading could not be cured by the allegation of other facts.”).

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IV.

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Recommendation
Accordingly, IT IS HEREBY RECOMMENDED that the amended complaint be

dismissed without leave to amend and that the Clerk be directed to close this case.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: April 11, 2012.

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