Martin v. Beck

Filing 11

ORDER signed by Magistrate Judge Kendall J. Newman on 2/5/15 ORDERING that Plaintiffs request for leave to proceed in forma pauperis 8 is granted. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff's complaint is DISMISSED with 30 days leave to amend. Plaintiffs motion for removal 3 is denied; Plaintiffs motion for writ of certiorari 9 is denied; Plaintiffs motion to set aside the state court judgment 10 is denied.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LANELL MARTIN,

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No. 2: 14-cv-2956 KJM KJN P

Plaintiff,
v.

ORDER

PHILLIP H. BECK,

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Defendant.

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Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to

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42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1).

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Plaintiff 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.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly

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payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

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§ 1915(b)(2).

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 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 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous when 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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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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 Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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formulaic recitation of the elements of a cause of action;” it must contain factual allegations

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sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.

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However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.

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Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal
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quotations marks omitted). In reviewing a complaint under this standard, the court must accept as

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true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the

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pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236

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(1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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The only named defendant is Dr. Beck. Plaintiff appears to challenge a ruling made in a

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previous action he filed in this court against defendant Beck, 2:12-cv-00421 LKK JFM P. In 12-

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00421, the Honorable Lawrence K. Karlton granted defendant Beck’s motion to dismiss for

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failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See 2:12-cv-00421

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LKK JFM P, at ECF No. 32. Judge Karlton adopted findings and recommendations issued by

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Magistrate Judge Moulds, finding that plaintiff had not stated potentially colorable claims for

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relief pursuant to the Eighth or Fourteenth Amendments. Id., at ECF No 26. Both Judge Moulds

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and Judge Karlton noted that mere negligence does not rise to the level of an Eighth Amendment

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claim. Id., at ECF Nos. 26, 32.

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In the instant action, plaintiff appears to argue that he raised a state law claim in 12-cv-

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00421, which the court failed to rule on. Plaintiff alleges that after the dismissal of 12-cv-00421,

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he filed a state court action raising his state law claims against defendant Beck. Plaintiff alleges

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that the state court rejected these claims as time barred. Plaintiff argues that these claims were

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not time barred when he raised them in 12-cv-00421.

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The undersigned cannot address orders issued by Judge Moulds and Judge Karlton in

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2:12-cv-00421. In other words, plaintiff may not litigate orders issued by Judge Moulds and

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Judge Karlton in 12-cv-00421 in the instant action. Instead, plaintiff may file an amended

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complaint in the instant action raising all of his claims against defendant Beck, based on both

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constitutional and state law. If the amended complaint raises only state law claims, this action

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will be dismissed. See 28 U.S.C. § 1332(a) (describing circumstances under which federal courts

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may handle state law claims only).

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The undersigned also observes that if plaintiff’s amended complaint restates the

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constitutional claims previously raised against defendant Beck in 12-00421, they will most likely

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be dismissed under the doctrine of res judicata. While Judge Karlton did not state whether
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dismissal of 12-0421 was with or without prejudice, generally, “a dismissal for failure to state a

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claim under Rule 12(b)(6) is presumed ... to be rendered with prejudice.” McLean v. United

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States, 566 F.3d 391, 396 (4th Cir. 2009).
Under the doctrine of res judicata, “a final judgment on the merits bars further claims by

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parties or their privies based on the same cause of action.” Montana v. United States, 440 U.S.

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147, 153 (1979). Thus, a claimant may not seek to re-litigate claims decided previously on their

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merits. Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 (9th Cir. 2005). In addition,

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res judicata “precludes the litigation of ‘any claims that were raised or could have been raised’ in

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a previous lawsuit.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir.

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2001). The doctrine is applicable “whenever there is “(1) an identity of claims, (2) a final

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judgment on the merits, and (3) privity between parties.” Stratosphere Litig. L.L.C. v. Grand

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Casinos, Inc., 298 F.3d 1137, 1143 n. 3 (9th Cir. 2002) (citation omitted). Notably, “[i]f a court is

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on notice that it has previously decided the issue presented, the court may dismiss the action sua

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sponte, even though the defense has not been raised.” Arizona v. California, 530 U.S. 392

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(2000).

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

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about which he complains resulted in a deprivation of plaintiff’s constitutional rights. Rizzo v.

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Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms how each

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named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983 unless there is

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some affirmative link or connection between a defendant’s actions and the claimed deprivation.

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Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743

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(9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil

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rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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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 requirement exists

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original
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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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Plaintiff has also filed a motion for removal pursuant to 28 U.S.C. 1441. (ECF No. 3.)

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The relief plaintiff seeks in this motion is unclear. To the extent plaintiff seeks removal of a

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pending state court action to this court, only defendants are authorized to file motions for

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removal. See 28 U.S.C. § 1441(a). Accordingly, plaintiff’s motion for removal is denied.

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Plaintiff has also filed a motion for a writ of certiorari. (ECF No. 9.) In this motion,
plaintiff requests that the court provide him with copies of all records from the state court case

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regarding which he filed his motion for removal. Because the motion for removal is denied, the

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request for documents from the state court action is denied.

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Plaintiff also filed a motion to set aside a state court judgment. (ECF No. 10.) In this

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motion, plaintiff requests that this court set aside the state court judgment finding his state law

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claims against defendant Beck time barred. The undersigned does not have the authority to

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overturn this state court judgment. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923);

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District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) (the Rooker-Feldman

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doctrine precludes a federal court from exercising jurisdiction over a case that essentially appeals

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a state court judgment).

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 8) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Amendment and submit the following documents to the court:
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a. The completed Notice of Amendment; and

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b. An original and one copy of the Amended Complaint.

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Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

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Failure to file an amended complaint in accordance with this order may result in the dismissal of

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this action.

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5. Plaintiff’s motion for removal (ECF No. 3) is denied;

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6. Plaintiff’s motion for writ of certiorari (ECF No. 9) is denied;

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7. Plaintiff’s motion to set aside the state court judgment (ECF No. 10) is denied.
Dated: February 5, 2015

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Mart2956.14

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LANELL MARTIN,

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No. 2: 14-cv-2956 KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

PHILLIP H. BECK,

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Defendant.

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Plaintiff hereby submits the following document in compliance with the court's order
filed______________.
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Amended Complaint

DATED:
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Plaintiff

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