Smith v. Moss, et al

Filing 4

ORDER signed by Magistrate Judge Kendall J. Newman on 2/24/2015 GRANTING plaintiff's 2 request to proceed IFP; plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order; plaintiff's complaint is DISMISSED; within 30 days, plaintiff shall complete and return the Notice of Amendment with the required documents. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARRELL SMITH,

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No. 2:15-cv-0359 KJN P

Plaintiff,

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v.

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S. MOSS, et al.,

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ORDER

Defendants.

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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 is granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action.

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28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing

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

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

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and 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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Named as defendants are S. Moss and G. Matteson. Plaintiff alleges that he was denied

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due process during prison disciplinary proceedings. In particular, plaintiff alleges that the rules

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violation report was not served within the time frame set forth in the regulations. Attached as an

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exhibit to the complaint is a copy of the rules violation report. The report states that on October

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29, 2013, Correctional Officer Johnson found a bindle in plaintiff’s front right jacket. (ECF 1 at

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20.) The bindle was later determined to contain marijuana. (Id. at 22.) Plaintiff was charged

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with possession of a controlled substance for distribution. (Id. at 20.) Plaintiff was found guilty

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and assessed 180 days loss of behavioral credits, 10 days loss of “ASU” yard, 30 days loss of all

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packages and special privileges, one year loss of visits, etc. (Id. at 22.) As relief, plaintiff

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requests that his disciplinary conviction be overturned, visits be restored and that he receive

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compensation.

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In Heck v. Humphrey, 512 U.S. 477 (1994), an Indiana state prisoner brought a civil

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rights action under § 1983 for damages. Claiming that state and county officials violated his

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constitutional rights, he sought damages for improprieties in the investigation leading to his

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arrest, for the destruction of evidence, and for conduct during his trial (“illegal and unlawful voice

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identification procedure”). Convicted on voluntary manslaughter charges, and serving a fifteen

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year term, plaintiff did not seek injunctive relief or release from custody. The United States

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Supreme Court affirmed the Court of Appeal’s dismissal of the complaint and held that:

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in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance
of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under 1983.
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Heck, 512 U.S. at 486.

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In Heck, the Supreme Court expressly held that a cause of action for damages under §

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1983 concerning a criminal conviction or sentence cannot exist unless the conviction or sentence

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has been invalidated, expunged or reversed. Id.

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In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court held that Heck applies to

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challenges to prison disciplinary hearings when the nature of the challenge to the procedures

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could be such as necessarily to imply the invalidity of the judgment.

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Plaintiff’s claims challenge the validity of his prison disciplinary conviction. It does not
appear that this disciplinary conviction has been invalidated, expunged or reversed. For that

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reason, plaintiff’s claim for money damages is barred by Heck. To the extent plaintiff seeks to

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simply overturn the disciplinary conviction, he must file a habeas corpus petition pursuant to 28

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U.S.C. § 2254. While it does not appear that plaintiff can cure these pleading defects, in an

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abundance of caution plaintiff is granted leave to amend.

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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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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 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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Dated: February 24, 2015

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Sm359.14

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARRELL SMITH,

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No. 2:15-cv-0359 KJN P

Plaintiff,

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v.

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S. MOSS, et al.,

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NOTICE OF AMENDMENT

Defendants.

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Plaintiff hereby submits the following document in compliance with the court's order
filed______________.
DATED:

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Amended Complaint

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Plaintiff