Escalante v. Uhren, et al

Filing 19

ORDER signed by Magistrate Judge Gregory G. Hollows on 09/09/11 ordering that plaintiff's first amended complaint is dismissed for the reasons discussed above, with leave to file a second amended complaint within 28 days from the date of service of this order. No further amendment will be allowed.(Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MIKE ANGEL ESCALANTE,

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Plaintiff,

No. CIV S-11-1508 JAM GGH P

vs.
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E. UHREN, et al.,

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Defendants.
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ORDER
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Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42

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U.S.C. § 1983. Defendants removed this case from state court and previously filed a motion to

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dismiss. Plaintiff filed a non-opposition to the motion to dismiss but requested an opportunity to

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file an amended complaint, which the court granted. Plaintiff has filed an amended 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 officer or employee of a governmental entity. 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. 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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A complaint must contain more than a “formulaic recitation of the elements of a

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cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).

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“The pleading must contain something more...than...a statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal

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Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

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v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127

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S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Id.

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In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff,

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and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct.

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1843 (1969).

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Plaintiff alleges that his due process protections were violated when he was found

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guilty of a serious rules violation report (RVR). Plaintiff states he was denied a postponement,

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paperwork and the ability to call certain witnesses. As a result, plaintiff forfeited 30 days of good

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time credits, ninety days loss of yard, phone privileges and confinement to quarters. Plaintiff
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seeks money damages and the removal of the RVR from his record.
However, plaintiff has not demonstrated that the RVR has been invalidated,

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expunged or reversed. As will be discussed below, plaintiff may not proceed with this action,

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unless the RVR has been invalidated, expunged or reversed. Plaintiff’s first amended complaint

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will be dismissed and plaintiff will be granted 28 days to file a second amended complaint. No

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further amendments will be allowed.

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Plaintiff is informed that in Heck v. Humphrey, 512 U.S. 477 (1994), an Indiana

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state prisoner brought a civil rights action under § 1983 for damages. Claiming that state and

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county officials violated his constitutional rights, he sought damages for improprieties in the

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investigation leading to his arrest, for the destruction of evidence, and for conduct during his trial

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(“illegal and unlawful voice identification procedure”). Convicted on voluntary manslaughter

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charges, and serving a fifteen year term, plaintiff did not seek injunctive relief or release from

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custody. The United States Supreme Court affirmed the Court of Appeal’s dismissal of the

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complaint and held that:

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in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance
of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under 1983.

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Heck, 512 U.S. at 486. The Court expressly held that a cause of action for damages under § 1983

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concerning a criminal conviction or sentence cannot exist unless the conviction or sentence has

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been invalidated, expunged or reversed. Id.

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The Supreme Court has extended the Heck bar to § 1983 suits that would negate

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prison disciplinary proceedings that affect good-time credits. Edwards v. Balisok, 520 U.S. 641,

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648 (1997). A prisoner’s challenge to a disciplinary hearing procedure is barred if judgment in
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his favor would necessarily imply the invalidity of the resulting loss of good-time credits. Id. at

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646. So, a “prisoner’s § 1983 action is barred (absent prior invalidation) – no matter the relief

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sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct

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leading to conviction or internal prison proceedings ) – if success in that action would necessarily

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demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74,

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81-82 (2005).

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms

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how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless

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there is some affirmative link or connection between a defendant’s actions and the claimed

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deprivation. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598 (1976); May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore,

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vague and conclusory allegations of official participation in civil rights violations are not

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sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in

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order to make plaintiff’s amended complaint complete. Local Rule 15-220 requires that an

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amended complaint be complete in itself without reference to any prior pleading. This is

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

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

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alleged.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s first amended complaint

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is dismissed for the reasons discussed above, with leave to file a second amended complaint

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within twenty-eight days from the date of service of this Order. No further amendment will be
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allowed. Failure to file a second amended complaint will result in a recommendation that this

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action be dismissed.

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DATED: September 9, 2011

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH: AB
esca1508.b

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