Dickerson v. State of California et al

Filing 8

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/3/2017 GRANTING 7 Motion to Proceed IFP; DISMISSING 1 Complaint with leave to amend within 30 days; and DENYING without prejudice 2 Request for Appointment of Counsel. Plaintiff to pay the statutory filing fee of $350. All payments to be collected in accordance with the notice to the CDCR filed concurrently herewith. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY DICKERSON,

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Plaintiff,

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v.
STATE OF CALIFORNIA, et al.,

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No. 2:16-cv-2910-KJM-EFB P

ORDER GRANTING IFP AND DISMISSING
COMPLAINT 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. He has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. ‘

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§ 1915 and a request for the appointment of counsel.

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I.

Request to Proceed In Forma Pauperis
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.

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Screening Order
The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A. The

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complaint names the State of California and Nancy Smith as defendants. It does not include any

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factual allegations or identify any claims for relief. It seeks “immediate release” in addition to

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“damages.” ECF No. 1, § V. Although the Federal Rules adopt a flexible pleading policy, a
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complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones

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v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at

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least some degree of particularity overt acts which defendants engaged in that support plaintiff’s

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claim. Id. Here, plaintiff fails to identify his intended claims for relief or link any defendant to a

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federal constitutional or statutory violation of his rights. In addition, the State of California is not

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a proper defendant and the request for immediate release in this civil rights action is improper.

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Lastly, it is not clear from the complaint whether venue is proper in this district.

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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 constitutional deprivation or a causal

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connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

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See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

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(9th Cir. 1978). Plaintiff may not sue any official on the theory that the official is liable for the

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unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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He must identify the particular person or persons who violated his rights. He must also plead

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facts showing how that particular person was involved in the alleged violation.

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Moreover, the State of California is not a “person” within the meaning of § 1983 and is

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immune from suit under the Eleventh Amendment. Will v. Michigan Dep’t of State Police, 491

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U.S. 58, 66 (1989); see also Hafer v. Melo, 502 U.S. 21, 30 (1991) (clarifying that Eleventh

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Amendment does not bar suits against state officials sued in their individual capacities, nor does it

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bar suits for prospective injunctive relief against state officials sued in their official capacities).

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As a general rule, a challenge in federal court to the fact of conviction or the length of

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confinement must be raised in a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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See Preiser v. Rodriguez, 411 U.S. 475 (1973). Where success in a section 1983 action would

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implicitly question the validity of confinement or its duration, the plaintiff must first show that

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the underlying conviction was reversed on direct appeal, expunged by executive order, declared
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invalid by a state tribunal, or questioned by the grant of a writ of habeas corpus. Heck v.

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Humphrey, 512 U.S. 477, 486-87 (1994); Muhammad v. Close, 540 U.S. 749, 751 (2004). To the

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extent plaintiff seeks release from custody, a writ of habeas corpus is his sole remedy in federal

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court, which he may pursue only after exhausting all of his constitutional claims in state court.

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Further, because the complaint is devoid of factual allegations, the court cannot determine

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whether venue in this district is proper. The federal venue statute provides that a civil action

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“may be brought in (1) a judicial district in which any defendant resides, if all defendants are

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residents of the State in which the district is located, (2) a judicial district in which a substantial

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part of the events or omissions giving rise to the claim occurred, or a substantial part of property

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that is the subject of the action is situated, or (3) if there is no district in which an action may

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otherwise be brought as provided in this action, any judicial district in which any defendant is

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subject to the court’s personal jurisdiction with respect to such action.” 28 U.S.C. § 1391(b). If

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plaintiff’s claims arise from the conditions of confinement at his current place of incarceration, he

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should commence a civil action pursuant to 42 U.S.C. § 1983 in the district of his confinement.

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For these reasons, plaintiff’s complaint fails to state a claim upon which relief can be

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granted. Plaintiff will be granted leave to file an amended complaint, if he can allege a

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cognizable legal theory against a proper defendant and sufficient facts in support of that

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cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints). Should plaintiff choose to file an amended complaint, the amended complaint

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shall clearly set forth the claims and allegations against each defendant. Any amended complaint

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must cure the deficiencies identified above and also adhere to the following requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation).

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It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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The court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. L.R. 110.

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IV.

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Request for Appointment of Counsel
Plaintiff requests that the court appoint counsel. District courts lack authority to require

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counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney

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to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935

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F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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When determining whether “exceptional circumstances” exist, the court must consider the

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009). Having considered those factors, the court finds there are no exceptional

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circumstances in this case.

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V.

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Accordingly, IT IS HEREBY ORDERED that:

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Summary of Order

1. Plaintiff’s request to proceed in forma pauperis (ECF No. 7) is granted.
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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected

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in accordance with the notice to the California Department of Corrections and

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Rehabilitation filed concurrently herewith.

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3. The complaint is dismissed with leave to amend within 30 days. The complaint

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must bear the docket number assigned to this case and be titled “Amended

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Complaint.” Failure to comply with this order will result in dismissal of this

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action for failure to prosecute. If plaintiff files an amended complaint stating a

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cognizable claim the court will proceed with service of process by the United

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States Marshal.

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4. Plaintiff’s request for the appointment of counsel (ECF No. 2) is denied without
prejudice.
Dated: August 3, 2017.

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