Civitillo v. California Department of Corrections et al

Filing 5

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)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

JACK CIVITILLO,

11
12
13

Plaintiff,

No. CIV S-11-1111 DAD P

vs.
CALIFORNIA DEPARTMENT
OF CORRECTIONS, et al.,

14
Defendants.
15

ORDER
/

16

Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant

17

to 42 U.S.C. § 1983 together with a request for leave to proceed in forma pauperis pursuant to 28

18

U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance

19

with Local Rule 302 and 28 U.S.C. § 636(b)(1).

20

I. Plaintiff’s Complaint

21

The court is required to screen complaints brought by prisoners seeking relief

22

against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C.

23

§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

24

claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

25

granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

26

U.S.C. § 1915A(b)(1) & (2).
1

1

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

2

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

3

(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

4

indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

5

490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

6

pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

7

Cir. 1989); Franklin, 745 F.2d at 1227.

8

Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and

9

plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

10

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

11

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

12

(1957)). However, in order to survive dismissal for failure to state a claim a complaint must

13

contain more than “a formulaic recitation of the elements of a cause of action;” it must contain

14

factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,

15

550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

16

allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

17

(1976). The court must also construe the pleading in the light most favorable to the plaintiff and

18

resolve all doubts in the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

19

Plaintiff is currently incarcerated at Deuel Vocational Institution. In his complaint

20

plaintiff alleges that he was held “from 6-9-10 to 9-27-10 thats [sic] 90+ day past max term[.]”

21

(Compl. (Doc. No. 1) at 3.) Plaintiff has named the California Department of Corrections and

22

“San Quentin” as defendants in this action and seeks monetary damages and, confusingly,

23

discharge from parole.

24

The allegations in plaintiff’s complaint are so vague and conclusory that the court

25

is unable to determine whether the current action is frivolous or fails to state a claim for relief.

26

The complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2).
2

1

Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice to

2

the defendants and must allege facts that support the elements of the claim plainly and succinctly.

3

Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Because plaintiff has

4

failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint must be

5

dismissed. The court will, however, grant leave to file an amended complaint.

6

Plaintiff is advised that the California Department of Corrections and San Quentin

7

State Prison are not proper defendants in a civil rights action. See Allison v. California Adult

8

Authority, 419 F.2d 822, 823 (9th Cir. 1969) (California Adult Authority and San Quentin Prison

9

are not persons within meaning of Civil Rights Act); Bennett v. California, 406 F.2d 36, 39 (9th

10

Cir. 1969) (California Adult Authority and California Department of Corrections are not persons

11

within meaning of Civil Rights Act). In addition, a suit against a state agency is barred by the

12

Eleventh Amendment. Alabama v. Pugh, 438 U.S. 781, 782 (1978).

13

II. Amended Complaint

14

If plaintiff chooses to file an amended complaint in this action, he must allege

15

facts demonstrating how the conditions or acts complained of resulted in a deprivation of his

16

federal constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The

17

amended complaint must allege in specific terms how each named defendant was involved in the

18

deprivation of plaintiff’s rights. There can be no liability under 42 U.S.C. § 1983 unless there is

19

some affirmative link or connection between a defendant’s actions and the claimed deprivation.

20

Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);

21

Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of

22

official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673

23

F.2d 266, 268 (9th Cir. 1982). Based upon the confusing and arguably contradictory allegations

24

of the complaint, the court is unable to comprehend plaintiff’s claim that his incarceration went

25

beyond his maximum term. Plaintiff should provide further factual allegations and dates,

26

including whether plaintiff was released on parole at some point, whether that parole was
3

1

revoked, whether the term imposed for any parole violation has been completed, and the

2

circumstances surrounding his current incarceration.

3

Plaintiff is also informed that a civil rights action is the proper mechanism for a

4

prisoner seeking to challenge the conditions of his or her confinement. Badea v. Cox, 931 F.2d

5

573, 574 (9th Cir. 1991). In contrast, habeas corpus proceedings are the proper mechanism for a

6

prisoner seeking to challenge the fact or duration of his or her confinement. Preiser v.

7

Rodriguez, 411 U.S. 475, 484 (1973). Accordingly, if plaintiff seeks to challenge the fact or

8

duration of his confinement, a writ of habeas corpus is plaintiff’s sole remedy in federal court

9

which may be pursued only after exhausting all of her constitutional claims in state court. See

10

Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“a state prisoner’s § 1983 action is barred

11

(absent prior invalidation) - no matter the relief sought (damages or equitable relief), no matter

12

the target of the prisoner’s suit (state conduct leading to conviction or internal prison

13

proceedings) - if success in that action would necessarily demonstrate the invalidity of

14

confinement or its duration.”) (emphasis in original)

15

Finally, plaintiff is informed that the court cannot refer to a prior pleading in order

16

to make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

17

complaint be complete in itself without reference to any prior pleading. This is because, as a

18

general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

19

F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

20

longer serves any function in the case. Therefore, in an amended complaint, as in an original

21

complaint, each claim and the involvement of each defendant must be sufficiently alleged.

22

III. Application for Requesting Leave to Proceed In Forma Pauperis

23

Plaintiff’s in forma pauperis application is incomplete. The certificate portion of

24

the request which must be completed by plaintiff’s institution of incarceration has not been filled

25

out. Also, plaintiff has not filed a certified copy of his prison trust account statement for the six

26

month period immediately preceding the filing of the complaint. See 28 U.S.C. § 1915(a)(2).
4

1

Plaintiff will be provided the opportunity to submit a completed in forma pauperis application

2

and a certified copy in support of his application.

3

CONCLUSION

4

In accordance with the above, IT IS HEREBY ORDERED that:

5

1. Plaintiff’s complaint (Doc. No. 1) is dismissed;

6

2. Plaintiff is granted thirty days from the date of service of this order to file an

7

amended complaint that complies with the requirements of the Civil Rights Act, the Federal

8

Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the

9

docket number assigned to this case and must be labeled “Amended Complaint;” plaintiff must

10

use the form complaint provided by the Clerk of the Court and answer each question;

11
12

3. Plaintiff’s April 25, 2011 application to proceed in forma pauperis (Doc. No.
2) is denied, without prejudice;

13

4. Within thirty days from the service of this order, plaintiff shall submit a

14

completed affidavit in support of his request to proceed in forma pauperis on the form provided

15

by the Clerk of Court and a certified copy of his prison trust account statement for the six month

16

period immediately preceding the filing of the complaint;

17

5. The Clerk of the Court is directed to send plaintiff a new Application to

18

Proceed In Forma Pauperis By a Prisoner and the form complaint for a § 1983 civil right action;

19

and

20

6. Plaintiff’s failure to comply with this order will result in a recommendation

21

that this action be dismissed without prejudice.

22

DATED: May 9, 2011.

23
24
25

DAD:4
civi1111.14

26
5