Civitillo v. California Department of Corrections et al
Filing
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ORDERsigned by Magistrate Judge Dale A. Drozd on 5/9/2011 ORDERING that pltf's cmplt is DISMISSED; pltf has 30 days to file an amended cmplt; pltf's 2 application to proceed IFP is DENIED, w/out prejudice; w/in 30 days, pltf to submit a completed ifp and a certified trust acct statement; the clerk to send pltf a new ifp application and a form for § 1983 civil right action. (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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JACK CIVITILLO,
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Plaintiff,
No. CIV S-11-1111 DAD P
vs.
CALIFORNIA DEPARTMENT
OF CORRECTIONS, et al.,
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Defendants.
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ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant
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to 42 U.S.C. § 1983 together with a request for leave to proceed in forma pauperis pursuant to 28
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U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance
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with Local Rule 302 and 28 U.S.C. § 636(b)(1).
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I. Plaintiff’s Complaint
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The court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C.
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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised
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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be
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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28
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U.S.C. § 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.
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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28
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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
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Cir. 1989); Franklin, 745 F.2d at 1227.
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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and
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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic
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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
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(1957)). However, in order to survive dismissal for failure to state a claim a complaint must
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contain more than “a formulaic recitation of the elements of a cause of action;” it must contain
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factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,
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550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the
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allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740
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(1976). The court must also construe the pleading in the light most favorable to the plaintiff and
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resolve all doubts in the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
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Plaintiff is currently incarcerated at Deuel Vocational Institution. In his complaint
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plaintiff alleges that he was held “from 6-9-10 to 9-27-10 thats [sic] 90+ day past max term[.]”
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(Compl. (Doc. No. 1) at 3.) Plaintiff has named the California Department of Corrections and
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“San Quentin” as defendants in this action and seeks monetary damages and, confusingly,
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discharge from parole.
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The allegations in plaintiff’s complaint are so vague and conclusory that the court
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is unable to determine whether the current action is frivolous or fails to state a claim for relief.
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The complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2).
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Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice to
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the defendants and must allege facts that support the elements of the claim plainly and succinctly.
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Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Because plaintiff has
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failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint must be
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dismissed. The court will, however, grant leave to file an amended complaint.
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Plaintiff is advised that the California Department of Corrections and San Quentin
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State Prison are not proper defendants in a civil rights action. See Allison v. California Adult
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Authority, 419 F.2d 822, 823 (9th Cir. 1969) (California Adult Authority and San Quentin Prison
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are not persons within meaning of Civil Rights Act); Bennett v. California, 406 F.2d 36, 39 (9th
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Cir. 1969) (California Adult Authority and California Department of Corrections are not persons
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within meaning of Civil Rights Act). In addition, a suit against a state agency is barred by the
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Eleventh Amendment. Alabama v. Pugh, 438 U.S. 781, 782 (1978).
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II. Amended Complaint
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If plaintiff chooses to file an amended complaint in this action, he must allege
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facts demonstrating how the conditions or acts complained of resulted in a deprivation of his
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federal constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The
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amended complaint must allege in specific terms how each named defendant was involved in the
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deprivation of plaintiff’s rights. There can be no liability under 42 U.S.C. § 1983 unless there is
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some affirmative link or connection between a defendant’s actions and the claimed deprivation.
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Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);
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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of
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official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673
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F.2d 266, 268 (9th Cir. 1982). Based upon the confusing and arguably contradictory allegations
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of the complaint, the court is unable to comprehend plaintiff’s claim that his incarceration went
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beyond his maximum term. Plaintiff should provide further factual allegations and dates,
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including whether plaintiff was released on parole at some point, whether that parole was
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revoked, whether the term imposed for any parole violation has been completed, and the
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circumstances surrounding his current incarceration.
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Plaintiff is also informed that a civil rights action is the proper mechanism for a
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prisoner seeking to challenge the conditions of his or her confinement. Badea v. Cox, 931 F.2d
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573, 574 (9th Cir. 1991). In contrast, habeas corpus proceedings are the proper mechanism for a
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prisoner seeking to challenge the fact or duration of his or her confinement. Preiser v.
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Rodriguez, 411 U.S. 475, 484 (1973). Accordingly, if plaintiff seeks to challenge the fact or
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duration of his confinement, a writ of habeas corpus is plaintiff’s sole remedy in federal court
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which may be pursued only after exhausting all of her constitutional claims in state court. See
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Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“a state prisoner’s § 1983 action is barred
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(absent prior invalidation) - no matter the relief sought (damages or equitable relief), no matter
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the target of the prisoner’s suit (state conduct leading to conviction or internal prison
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proceedings) - if success in that action would necessarily demonstrate the invalidity of
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confinement or its duration.”) (emphasis in original)
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Finally, plaintiff is informed that the court cannot refer to a prior pleading in order
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to make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended
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complaint be complete in itself without reference to any prior pleading. This is because, as a
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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375
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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no
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longer serves any function in the case. Therefore, in an amended complaint, as in an original
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complaint, each claim and the involvement of each defendant must be sufficiently alleged.
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III. Application for Requesting Leave to Proceed In Forma Pauperis
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Plaintiff’s in forma pauperis application is incomplete. The certificate portion of
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the request which must be completed by plaintiff’s institution of incarceration has not been filled
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out. Also, plaintiff has not filed a certified copy of his prison trust account statement for the six
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month period immediately preceding the filing of the complaint. See 28 U.S.C. § 1915(a)(2).
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Plaintiff will be provided the opportunity to submit a completed in forma pauperis application
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and a certified copy in support of his application.
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CONCLUSION
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s complaint (Doc. No. 1) is dismissed;
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2. Plaintiff is granted thirty days from the date of service of this order to file an
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amended complaint that complies with the requirements of the Civil Rights Act, the Federal
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Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the
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docket number assigned to this case and must be labeled “Amended Complaint;” plaintiff must
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use the form complaint provided by the Clerk of the Court and answer each question;
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3. Plaintiff’s April 25, 2011 application to proceed in forma pauperis (Doc. No.
2) is denied, without prejudice;
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4. Within thirty days from the service of this order, plaintiff shall submit a
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completed affidavit in support of his request to proceed in forma pauperis on the form provided
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by the Clerk of Court and a certified copy of his prison trust account statement for the six month
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period immediately preceding the filing of the complaint;
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5. The Clerk of the Court is directed to send plaintiff a new Application to
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Proceed In Forma Pauperis By a Prisoner and the form complaint for a § 1983 civil right action;
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and
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6. Plaintiff’s failure to comply with this order will result in a recommendation
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that this action be dismissed without prejudice.
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DATED: May 9, 2011.
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DAD:4
civi1111.14
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