Tillman v. Board of Parole Hearings et al

Filing 10

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/23/2014 GRANTING plaintiff's 7 motion to proceed IFP; plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order; plaintiff's complaint is DISMISSED with leave to file an amended complaint within 30 days. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY BRYAN TILLMAN, 12 13 14 15 No. 2:14-cv-0613 CKD P Plaintiff, v. ORDER BOARD OF PAROLE HEARINGS, et al., Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 18 § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and 20 plaintiff has consented to have all proceedings in the matter before a United States Magistrate 21 Judge. See 28 U.S.C. § 636(c). 22 23 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 25 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 26 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 27 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 28 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 1 1 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 2 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989); Franklin, 745 F.2d at 1227. 15 In order to avoid dismissal for failure to state a claim a complaint must contain more than 16 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 17 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 18 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 19 statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a claim 20 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 21 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 22 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. 23 at 1949. When considering whether a complaint states a claim upon which relief can be granted, 24 the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), 25 and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 26 U.S. 232, 236 (1974). 27 28 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it fails to state a claim upon which relief can be granted. Although the Federal Rules of Civil Procedure 2 1 adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the 2 claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 3 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants 4 engaged in that support plaintiff’s claim. Id. Plaintiff’s complaint must be dismissed. The court 5 will, however, grant leave to file an amended complaint. 6 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 7 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 8 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how 9 each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there 10 is some affirmative link or connection between a defendant’s actions and the claimed deprivation. 11 Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); 12 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory 13 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 14 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 15 It appears plaintiff may seek release from prison. To the extent this is true, plaintiff is 16 informed that his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 17 475, 500 (1973). Plaintiff should omit any claims where he seeks earlier release from prison from 18 his amended complaint and pursue such claims in an action for writ of habeas corpus under 28 19 U.S.C. § 2254. To the extent plaintiff seeks damages for what he believes to be illegal 20 incarceration, plaintiff is advised that in Heck v. Humphrey, 512 U.S. 477, 487 (1994) the 21 Supreme Court held that an inmate cannot bring an action under 28 U.S.C. § 1983 if the claims 22 asserted imply the invalidity of a conviction or sentence which has not been invalidated through 23 an appeal or habeas action. 24 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 25 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 26 complaint be complete in itself without reference to any prior pleading. This is because, as a 27 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 28 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 3 1 longer serves any function in the case. Therefore, in an amended complaint, as in an original 2 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 3 In accordance with the above, IT IS HEREBY ORDERED that: 4 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 7) is granted. 5 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 6 shall be collected and paid in accordance with this court’s order to the Director of the California 7 Department of Corrections and Rehabilitation filed concurrently herewith. 8 3. Plaintiff’s complaint is dismissed. 9 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 10 complaint that complies with the requirements of this order, the Civil Rights Act, the Federal 11 Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must bear the 12 docket number assigned this case and must be labeled “Amended Complaint.” Failure to file an 13 amended complaint in accordance with this order will result in a recommendation that this action 14 be dismissed. 15 Dated: April 23, 2014 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 1 till0613.14 23 24 25 26 27 28 4

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