Wolinski v. Shaffer et al

Filing 10

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/29/15 ORDERING that plaintiffs request to proceed in forma pauperis (ECF No. 2 ) is granted. Plaintiff shall pay the statutory filing fee of $350. It is RE COMMENDED that the complaint (ECF No. 1 ) be dismissed for failure to state a claim upon which relief may be granted and that the Clerk be directed to terminate all outstanding motions and close the case. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KRZYSTOF WOLINSKI,

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Plaintiff,

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No. 2:14-cv-2492-MCE-EFB P

v.
JENNIFER P. SHAFFER, et al.,

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ORDER GRANTING IFP AND
RECOMMENDING DISMISSAL PURSUANT
TO 28 U.S.C. § 1915A

Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. In addition to filing a complaint, he seeks leave to proceed in forma pauperis.
I.

Request to Proceed In Forma Pauperis
Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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II.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which
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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

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plain statement of the claim showing that the pleader is entitled to relief, in order to give the

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defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

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678.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

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plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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III.

Screening Order

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As explained below, plaintiff’s allegations fail to state a cognizable claim and must be

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dismissed without leave to amend. The complaint names as defendants Governor Brown and

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Jennifer Shaffer, the Executive Officer at the International Prison Transfer Program. Plaintiff

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claims that he should be transferred to a prison in Poland because (1) he has no family in this

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country, (2) it would not pose a threat to the public, (3) it would be consistent with orders to
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reduce the prison population, (4) it would be consistent with a treaty between the United States of

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America and Austria, (5) he would be allowed to work, and (6) he would obtain excellent medical

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care. He requests that defendants issue an order granting him an international transfer to a Polish

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prison. It is plain from the complaint that plaintiff’s requested relief is based on his preference to

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be in Poland, and not based on any violation of a federal constitutional or statutory right.

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To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal

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constitutional or statutory right; and (2) that the violation was committed by a person acting under

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the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

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930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the

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facts establish the defendant’s personal involvement in the alleged rights deprivation, as there is

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no respondeat superior liability under section 1983. Id. Plaintiff does not allege any facts to

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show how or which of his federal rights were violated by either of the named defendants.

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Moreover, the existence of court orders to reduce prison overcrowding does not give rise to a

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claim, as overcrowding, by itself, is not a constitutional violation. Doty v. County of Lassen, 37

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F.3d 540, 545 n.1 (9th Cir. 1994); Hoptowit v. Ray, 682 F.2d 1237, 1249 (9th Cir. 1982).

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Moreover, plaintiff’s contention that his continued custody violates an international treaty

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sounds in habeas. See 28 U.S.C. § 2254(a) (“a district court shall entertain an application for a

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writ of habeas corpus in behalf of a person in custody pursuant to a judgment of a State court only

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on the ground that he is in custody in violation of the constitution or laws or treaties of the United

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States.”). And where, as here, a prisoner challenges the legality or duration of his custody, or

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raises a constitutional challenge which could entitle him to an earlier release, his sole federal

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remedy is a writ of habeas corpus. Skinner v. Switzer, 562 U.S. 521 (2011); Preiser v. Rodriguez,

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411 U.S. 475 (1973).

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Accordingly, this action must be dismissed without leave to amend. See Lopez v. Smith,

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203 F.3d 1122, 1129 (9th Cir. 2000) (“Under Ninth Circuit case law, district courts are only

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required to grant leave to amend if a complaint can possibly be saved. Courts are not required to

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grant leave to amend if a complaint lacks merit entirely.”); see also Doe v. United States, 58 F.3d

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494, 497 (9th Cir. 1995) (“[A] district court should grant leave to amend even if no request to
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amend the pleading was made, unless it determines that the pleading could not be cured by the

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allegation of other facts.”).

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request to proceed in forma

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pauperis (ECF No. 2) is granted. Plaintiff shall pay the statutory filing fee of $350. All payments

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shall be collected in accordance with the notice to the Director of the California Department of

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Corrections and Rehabilitation filed concurrently herewith.

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Further, IT IS HEREBY RECOMMENDED that the complaint (ECF No. 1) be dismissed

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for failure to state a claim upon which relief may be granted and that the Clerk be directed to

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terminate all outstanding motions and close the 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.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez

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v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 29, 2015.

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