Craver v. Brewer et al

Filing 15

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/10/2012 ORDERING that the First Amended Complaint is DISMISSED, with leave to file a Second Amended Complaint within 30 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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ADAM R. CRAVER,
Plaintiff,

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vs.

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No. CIV S-11-1570 CKD P

TRACI A. BREWER, et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis. He seeks

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relief pursuant to 42 U.S.C. § 1983. After plaintiff’s original complaint in this action was

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dismissed with leave to amend, plaintiff filed a First Amended Complaint on August 30, 2011.

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(Dkt. No. 12; see also Dkt. No. 14 (supplement to FAC).)
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 (2007). “The pleading must

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contain something more...than...a statement of facts that merely creates a suspicion [of] a legally

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cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure

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1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient factual matter, accepted

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as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, __ U.S. __, 129

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S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has

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facial plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct 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 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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

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Here, plaintiff alleges that defendant Brewer of Child Protective Services

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“falsified a Protective Custody Order” to state that plaintiff was a registered sex offender.

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Plaintiff further alleges that defendant Lang, a West Sacramento police officer, “verified the

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custody order with his signature[.]” (Dkt. No. 12 at 3; see Dkt. No. 14.) Plaintiff attaches a

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protective custody report dated February 26, 2010 and signed by Brewer and Lang which
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concerns sexual advances made to a 15-year-old minor by her mother’s boyfriend. The report

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notes: “Mother’s b/f a 290” – an apparent reference to California Penal Code section 290, known

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as the Sex Offender Registration Act. (Id. at 5.)
In a supplement to the complaint, plaintiff explains that Brewer and Lang came to

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his and his fiancee’s home “to look into a probable sexual assault by me on my fiance’s 15 year

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old daughter on February 28, 2010 . . . [.] At the time of this inquiry, I was on parole[.]” Plaintiff

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appears to claim that he has never been convicted of a sexual offense that would require him to

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register as a sex offender under California Penal Code section 290(c) (listing various offenses

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requiring registration). While plaintiff does not state as much in his complaint or supplementary

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pleading, it appears possible that plaintiff’s parole was revoked due to this incident, as plaintiff is

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currently in prison. He claims that he is subject to constant ridicule as a sex offender by

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correctional officers and other inmates.1 (Dkt. No. 14.) Plaintiff seeks “financial relief for the

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mental and physical suffering” resulting from defendants’ “accusation.” (Dkt No. 12 at 3.)
In Daniels v. Piercy, No. 1:10-cv-00630 JLT (PC), 2011 WL 284967 (E.D. Cal.

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Jan. 26, 2011), the court addressed similar allegations at the screening stage. In Daniels, plaintiff

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alleged that defendant parole officers falsely reported that he had been previously convicted of

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raping a child under 14. “As a result, . . . a condition of parole was imposed on him that

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prohibited him from having contact with children. Some time later, he was violated on parole

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due, it appears, to his violation of this condition.” Plaintiff alleged that as a result of this parole

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violation, he was returned to state prison. He claimed that defendants made the “false report”

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about him so that he “would be labeled a violent child molester” and that it was done with the

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“intent to have me hurt or killed.” Plaintiff requested an investigation into his claims and asked

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that the parole condition barring him from contact with children be “stricken.” (Id. at *2.)

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Plaintiff also claims that he has been "defamed" by defendants and "slandered" by "the
family courts of Woodland, California." These allegations are clearly not actionable under 42 U.S.C.
§ 1983, which governs alleged violations of federal constitutional rights.
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The Daniels court determined that, “because Plaintiff’s success on this claim

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would likely imply the invalidity of his parole determination and confinement, the complaint

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must be dismissed” under Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). (Id. at *3.)

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Heck prohibits a prisoner from raising a claim under 42 U.S.C. § 1983 that, if successful, would

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invalidate a conviction or sentence that has not been “reversed, expunged or called into question

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by issuance of a writ of habeas corpus.” See also Butterfield v. Bail, 120 F.3d 1023, 1025 (9th

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Cir.1997) (finding that Heck applies to a challenge to the procedures used in the denial of

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parole); White v. Gittens, 121 F.3d 803, 807 (1st Cir. 1997) (applying Heck to the decision to

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revoke parole).

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Here, insofar as plaintiff seeks to challenge the revocation of his parole based on

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defendants’ report, the same conclusion is warranted. Under Heck, before plaintiff may seek

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damages related to his incarceration, he must show that the parole revocation has already been:

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(1) reversed on direct appeal; (2) expunged by executive order; (3) declared invalid by a state

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tribunal authorized to make such a determination; or (4) called into question by the issuance of a

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writ of habeas corpus. Id. at 487.

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Insofar as plaintiff is claiming that his conditions of confinement are

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unconstitutional because he is being ridiculed as a sex offender by correctional guards and other

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inmates, these allegations do not implicate named defendants Brewer and Lang, who are not

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responsible for how plaintiff is treated while in CDCR custody. Thus the FAC must be

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dismissed in its entirety.

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Plaintiff will be granted one more opportunity to amend the complaint to state a

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claim. 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).
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 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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In accordance with the above, IT IS HEREBY ORDERED that the First Amended

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Complaint (Dkt. No. 12) is dismissed for the reasons discussed above, with leave to file a Second

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Amended Complaint within thirty days from the date of service of this order. Failure to file an

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amended complaint will result in a recommendation that the action be dismissed.

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Dated: April 10, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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crav1570.FAC

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