Smith v. Sacramento Metro Parole Department

Filing 4

AMENDED 3 FINDINGS and RECOMMENDATIONS, recommending that plaintiff's 2 Motion to Proceed In Forma Pauperis be granted, 1 Complaint be dismissed without leave to amend, and Clerk be directed to close case, signed by Magistrate Judge Edmund F. Brennan on 2/10/12. These F/Rs are SUBMITTED to District Judge Morrison C. England, Jr.. Within 14 days after being served with these F/Rs, any party may file written Objections with Court and serve a copy on all parties. (Marciel, 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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KENNETH SMITH,
Plaintiff,

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No. CIV 11-2949 MCE EFB PS

vs.
SACRAMENTO METRO PAROLE
DEPARTMENT, BOARD OF
PRISON TERMS,
AMENDED FINDINGS AND
RECOMMENDATIONS1

Defendant.

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/

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This case, in which plaintiff is proceeding in propria persona, was referred to the

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undersigned under Local Rule 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). Plaintiff requests

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authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis, and has submitted the

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affidavit required thereunder which demonstrates that plaintiff is unable to prepay fees and costs

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or give security thereof. Accordingly, the request to proceed in forma pauperis will be granted.

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28 U.S.C. § 1915(a).

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Determining plaintiff may proceed in forma pauperis does not complete the required
inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time

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These findings and recommendations are amended only to correct the name of the
defendant in the caption. No other modifications or amendments are made herein.
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if it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails

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to state a claim on which relief may be granted, or seeks monetary relief against an immune

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defendant.

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Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

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520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if

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it fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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

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(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of

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his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

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a cause of action’s elements will not do. Factual allegations must be enough to raise a right to

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relief above the speculative level on the assumption that all of the complaint’s allegations are

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true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

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legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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In this action, plaintiff alleges that Sacramento Metro Parole Agent Glinda Page and the

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Board of Prison Terms engaged in “misconduct” which resulted in plaintiff not getting “out of

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prison on time.” Dckt. No. 1 at 2. It appears that plaintiff is complaining that in February of

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2001, Glinda Page and Dr. Nigghat Zaka falsified documents stating that plaintiff was mentally

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disturbed. Id. Nevertheless, the court finds the allegations in plaintiff’s complaint so vague and

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conclusory that it is unable to determine whether the current action is frivolous or fails to state a

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claim for relief.

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To the extent plaintiff is attempting to bring a civil rights action pursuant to 42 U.S.C.

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§ 1983, his complaint fails for two reasons. First, plaintiff does not allege how the conduct

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complained of has resulted in a deprivation of a right, privilege or immunity secured by

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the Constitution or federal law by a person acting under color of state law. See West v. Atkins,

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487 U.S. 42, 48 (1988) (In order to state a claim under § 1983, plaintiffs must allege: (1) the
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violation of a federal constitutional or statutory right; and (2) that the violation was committed

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by a person acting under the color of state law.). The statute requires that there be an actual

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connection or link between the actions of the defendants and the deprivation alleged to have

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been suffered by plaintiff. See Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v.

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Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the deprivation of a constitutional

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right, within the meaning of § 1983, if he does an affirmative act, participates in another’s

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affirmative acts or omits to perform an act which he is legally required to do that causes the

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deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Second, the court notes that the incident complained of by plaintiff in his complaint

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apparently took place in 2001, over ten years prior to the filing of the pending complaint in this

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court. The statute of limitations for the bringing of a § 1983 action is governed by the forum

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state’s statute of limitations for personal injury torts. Wilson v. Garcia, 471 U.S. 261, 276

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(1985); Fink v. Shelder, 192 F.3d 911, 914 (9th Cir. 1999). Prior to January 1, 2003, the statute

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of limitations for personal injury torts in California was one year. See former Cal. Civ. Proc.

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Code § 340(c). Thus, any § 1983 claim related to an event that occurred in 2001 would appear

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to be barred by that one-year statute of limitations.

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Further, plaintiff’s complaint does not contain a short and plain statement of the grounds

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upon which the court’s jurisdiction depends, a short and plain statement of the claim showing

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that the plaintiff is entitled to relief, or a demand for judgment for the relief plaintiff seeks.

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Thus, plaintiff’s complaint fails to satisfy the minimum requirements for a civil complaint in

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federal court and does not state a cognizable claim. Accordingly, plaintiff’s complaint will be

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dismissed for failure to state a claim.

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The undersigned has carefully considered whether plaintiff may amend his complaint to

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state a claim upon which relief can be granted. “Valid reasons for denying leave to amend

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include undue delay, bad faith, prejudice, and futility.” Cal. Architectural Bldg. Prod. v.

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Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988); see also Klamath-Lake Pharm.
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Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while

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leave to amend shall be freely given, the court does not have to allow futile amendments).

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The court notes that plaintiff has filed at least three previous complaints in this court making

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essentially the same allegations that are set forth in the complaint now filed in this action.2 See

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Smith v. Page, No. 2:06-cv-1860-LKK-DAD; Smith v. Sacramento Metro Parole Division, No.

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2:07-cv-1654-GEB-CMK; Smith v. Page, No. 2:11-cv-1305-LKK-DAD. Plaintiff’s original

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complaint in each of those cases was also dismissed for failure to state a cognizable claim for

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reasons similar to those cited here. See No. 2:06-cv-1860-LKK-DAD, Dckt. No. 4; No.

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07-cv-1654-GEB-CMK, Dckt. No. 7; No. 2:11-cv-1305-LKK-DAD, Dckt. No. 3. In light of this

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history, and the obvious deficiencies noted above, the undersigned finds that it would be futile to

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grant plaintiff leave to amend. Accordingly, the court will recommend this action be dismissed

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without leave to amend. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (While the court

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ordinarily would permit a pro se plaintiff to amend, leave to amend should not be granted where

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it appears amendment would be futile).

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis be granted;

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2. The complaint be dismissed without leave to amend; and

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3. The Clerk of Court 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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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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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: February 10, 2012.

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