Ballard v. Wong et al

Filing 8

ORDER signed by Magistrate Judge Craig M. Kellison on 05/29/14 ordering the plaintiff's complaint is dismissed with leave to amend. Plaintiff shall file an amended complaint within 30 days from the date of this order. (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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JOHN MARVIN BALLARD,

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No. 2:12-cv-2226-CMK-P

Plaintiff,
vs.

ORDER

SAMUEL WONG, et al.,
Defendants.
/
Plaintiff, a civil detainee, brings this civil rights action pursuant to 42 U.S.C. §
1983. Pending before the court is plaintiff’s complaint (Doc. 1).
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. See 28 U.S.C.

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§ 1915A(a). The court is also required to screen complaints brought by litigants who have been

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granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under these screening

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provisions, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(A), (B) and

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1915A(b)(1), (2). The Federal Rules of Civil Procedure require that complaints contain a “short
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and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

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8(a)(2). This means that claims must be stated simply, concisely, and directly. See McHenry v.

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Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are

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satisfied if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds

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upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff

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must allege with at least some degree of particularity overt acts by specific defendants which

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support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it

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is impossible for the court to conduct the screening required by law when the allegations are

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vague and conclusory. Moreover, pursuant to Federal Rule of Civil Procedure 12(h)(3), this court

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must dismiss an action if the court determines that it lacks subject matter jurisdiction. Because

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plaintiff, who states he is not a prisoner but a civil detainee, has been granted leave to proceed in

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forma pauperis, the court will screen the complaint pursuant to § 1915(e)(2).

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I. PLAINTIFF’S ALLEGATIONS
Plaintiff’s allegations are vague and difficult to decipher. It appears that he is

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claiming defendant Wong, who is stated to be an Assistant United States Attorney, is disclosing

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plaintiff’s personal information to a court in North Carolina. Plaintiff does not explain why the

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court in North Carolina is requesting such information, or why sharing the information with the

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Court is a violation of his Constitutional rights, but it appears to be in reference to some

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proceeding in that Court. Plaintiff also indicates the information defendant Wong is providing

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that Court is false. Plaintiff further states defendant Wong is guilty of prosecutorial misconduct.

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II. DISCUSSION

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Section 1983 imposes liability upon any person who, acting under color of state

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law, deprives another of a federally protected right. 42 U.S.C. § 1983 (1982). “To make out a

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cause of action under section 1983, plaintiffs must plead that (1) the defendants acting under

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color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes.”

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Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.1986).
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When a state prisoner challenges the legality of his custody and the relief he seeks

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is a determination that he is entitled to an earlier or immediate release, such a challenge is not

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cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal remedy is a petition for a writ

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of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda,

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131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir.

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1995) (per curiam). Thus, where a § 1983 action seeking monetary damages or declaratory relief

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alleges constitutional violations which would necessarily imply the invalidity of the prisoner’s

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underlying conviction or sentence, or the result of a prison disciplinary hearing resulting in

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imposition of a sanction affecting the overall length of confinement, such a claim is not

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cognizable under § 1983 unless the conviction or sentence has first been invalidated on appeal,

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by habeas petition, or through some similar proceeding. See Heck v. Humphrey, 512 U.S. 477,

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483-84 (1994) (concluding that § 1983 claim not cognizable because allegations were akin to

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malicious prosecution action which includes as an element a finding that the criminal proceeding

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was concluded in plaintiff’s favor); Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir. 1997)

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(concluding that § 1983 claim not cognizable because allegations of procedural defects were an

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attempt to challenge substantive result in parole hearing); cf. Neal, 131 F.3d at 824 (concluding

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that § 1983 claim was cognizable because challenge was to conditions for parole eligibility and

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not to any particular parole determination); cf. Wilkinson v. Dotson, 544 U.S. 74 (2005)

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(concluding that § 1983 action seeking changes in procedures for determining when an inmate is

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eligible for parole consideration not barred because changed procedures would hasten future

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parole consideration and not affect any earlier parole determination under the prior procedures).

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If a § 1983 complaint states claims which sound in habeas, the court should not

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convert the complaint into a habeas petition. See id.; Trimble, 49 F.3d at 586. Rather, such

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claims must be dismissed without prejudice and the complaint should proceed on any remaining

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cognizable § 1983 claims. See Balisok, 520 U.S. at 649; Heck, 512 U.S. at 487; Trimble, 49

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F.3d at 585.
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Here, plaintiff’s claims are too vague for the court to determine whether or not

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plaintiff states a claim under § 1983. It appears that plaintiff is upset about having his

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psychological evaluations shared with the Court in North Carolina. As plaintiff is a civil

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detainee, the undersigned assumes that the psychological evaluations are being utilized in

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determining whether or not plaintiff is to be released or continued to be held as a civil detainee.

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As such, it would appear that plaintiff’s claims would sound in habeas to the extent the claims

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are related to his continued detention. To the extent plaintiff is actually attempting to state a

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claim under § 1983, the only claims the undersigned can decipher from his complaint are state

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law claims, such as prosecutorial misconduct, which are not cognizable in a § 1983 action.

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III. CONCLUSION

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As plaintiff’s claims are unclear, he will be provided an opportunity to clarify his

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claims. Plaintiff is cautioned, however, that an action under § 1983 is a challenge to the

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conditions of his confinement and his treatment therein. Any challenge to the terms of his

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detention, including an extension thereto, would sound in habeas and would not be cognizable in

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this action.

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Because it is possible that the deficiencies identified in this order may be cured by

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amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire

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action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is

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informed that, as a general rule, an amended complaint supersedes the original complaint. See

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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to

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amend, all claims alleged in the original complaint which are not alleged in the amended

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complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if

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plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make

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plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be

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complete in itself without reference to any prior pleading. See id.

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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). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See 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).

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s complaint is dismissed with leave to amend; and

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2.

Plaintiff shall file an amended complaint within 30 days of the date of

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service of this order.

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DATED: May 29, 2014
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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