Johnson v. Schubert et al

Filing 3

ORDER signed by Magistrate Judge Allison Claire on 6/13/2017 GRANTING 2 Plaintiff's Request to Proceed in forma pauperis; Plaintiff's Complaint is DISMISSED because the complaint is frivolous; Plaintiff shall have 30 days from the date of this order to file an amended complaint that complies with the instructions given.(Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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OTHELLO C.M. JOHNSON,

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No. 2:17-cv-00666 JAM AC (PS)

Plaintiff,
v.

ORDER

ANN MARIE SCHUBERT, et al.,
Defendants.

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Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the

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undersigned by E.D. Cal. R. (“Local Rule”) 302(c)(21). Plaintiff has filed a request for leave to

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proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915, and has submitted the affidavit

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required by that statute. See 28 U.S.C. § 1915(a)(1). ECF No. 2. The request will be

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GRANTED, however the complaint, in its current form, does not state a legal claim upon which

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relief can be granted and is DISMISSED with leave to amend.

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I. SCREENING
Plaintiff must assist the court in determining whether the complaint is frivolous or not, by

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drafting his complaint so that it complies with the Federal Rules of Civil Procedure (“Fed. R. Civ.

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P.”). The Federal Rules of Civil Procedure are available online at www.uscourts.gov/rules-

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policies/current-rules-practice-procedure/federal-rules-civil-procedure. Under the Federal Rules

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of Civil Procedure, the complaint must contain (1) a “short and plain statement” of the basis for
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federal jurisdiction (that is, the reason the case is filed in this court, rather than in a state court),

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(2) a short and plain statement showing that plaintiff is entitled to relief (that is, who harmed the

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plaintiff, and in what way), and (3) a demand for the relief sought. Fed. R. Civ. P. 8(a).

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Plaintiff’s claims must be set forth simply, concisely and directly. Fed. R. Civ. P. 8(d)(1). Forms

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are available to help pro se plaintiffs organize their complaint in the proper way. They are

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available at the Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA 95814, or

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online at www.uscourts.gov/forms/pro-se-forms.

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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). In reviewing a complaint under this standard, the

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court will (1) accept as true all of the factual allegations contained in the complaint, unless they

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are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the

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plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327;

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Erickson v. Pardus, 551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum of Art at

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Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011); Hebbe v. Pliler,

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627 F.3d 338, 340 (9th Cir. 2010). However, the court need not accept as true legal conclusions

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cast in the form of factual allegations, or allegations that contradict matters properly subject to

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judicial notice. See Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981);

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Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), as amended, 275 F.3d 1187

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(2001).

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Pro se pleadings are held to a less stringent standard than those drafted by lawyers.

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Haines v. Kerner, 404 U.S. 519, 520 (1972). Pro se complaints are construed liberally and may

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only be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support

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of his claim which would entitle him to relief. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th

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Cir. 2014). A pro se litigant is entitled to notice of the deficiencies in the complaint and an

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opportunity to amend, unless the complaint’s deficiencies could not be cured by amendment. See

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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

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A. The Complaint

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Plaintiff brings his complaint against defendants pursuant to the Federal Tort Claims Act,

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28 U.S.C. § 1346 and § 2671. ECF No. 1 at 1. Although plaintiff lists federal statutes as the

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basis for his claims, the complaint does not state any factual allegations other than the assertion

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that plaintiff’s claim is timely and administratively proper. Id. at 2. Plaintiff’s allegations do not

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indicate who did what, or how it caused plaintiff harm. Some of plaintiff’s causes of action

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appear to challenge a previous criminal trial. See, e.g., id. at 3 (under “Third Cause of Action”

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plaintiff indicates he was wrongfully denied “federally protected due process rights after a

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immediate request for a speedy trial . . .”).

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B. Analysis

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The complaint is frivolous and cannot be pursued in its current form because it fails to

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state any cognizable legal claims.

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a.

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Plaintiff’s Allegations Do Not State a Legal Claim

In order to survive IFP screening, the complaint must allege facts showing that defendant

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engaged in some conduct that the law prohibits (or failed to do something the law requires), and

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that in doing so, defendant harmed plaintiff. In addition, if a state law alone is at issue, plaintiff

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must allege facts showing that “diversity” jurisdiction exists, that is, that the amount in

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controversy exceeds $75,000, and that he is a citizen of a different state than the defendant. See

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28 U.S.C. § 1332. It is not clear from the few factual allegations of the complaint whether

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plaintiff could possibly state a claim that can be heard in this court, and that would entitle him to

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relief.

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1. Plaintiff Must Specify Defendant Involvement.
Although plaintiff does not explicitly mention 42 U.S.C.A. § 1983, some of plaintiff’s

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allegations seem to indicate he is bringing a civil rights complaint pursuant to that statute. If

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plaintiff chooses to file a first amended complaint, he is informed that §1983 requires that the

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complaint demonstrate how the conditions or events about which he complains resulted in a

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deprivation of his constitutional rights. Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). Also, the

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complaint must allege in specific terms how each named defendant is involved. Arnold v. Int’l
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Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can be no liability under 42

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U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s actions

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and the claimed deprivation. Id.; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Furthermore, “[v]ague and conclusory allegations of official participation in civil rights violations

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are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted).

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2. Plaintiff cannot seek to invalidate a criminal sentence in a civil rights
action

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In his complaint, plaintiff appears to be challenging the validity of his criminal trial and

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confinement. ECF No. 1, 6-9. State prisoners may not challenge the fact or duration of their

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confinement in a § 1983 action; their sole remedy lies in habeas corpus relief. Wilkinson v.

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Dotson, 544 U.S. 74, 78 (2005). Often referred to as the favorable termination rule or the Heck

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bar,1 this limitation applies whenever state prisoners “seek to invalidate the duration of their

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confinement—either directly through an injunction compelling speedier release or indirectly

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through a judicial determination that necessarily implies the unlawfulness of the State’s custody.”

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Id. at 81 (emphasis in original). Accordingly, “a state prisoner’s § 1983 action is barred (absent

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prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target

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of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)—if

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success in that action would necessarily demonstrate the invalidity of confinement or its

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duration.” Id. at 81-82. Here, plaintiff’s allegations appear to be related to the validity of his

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criminal trial. ECF No. 1, 9. A favorable finding on these claims would necessarily imply the

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invalidity of trial and they are therefore not cognizable.

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3. Plaintiff cannot sue defendants that are immune from suit.

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Plaintiff alleges claims against some defendants that may be immune from suit. Though

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plaintiff does not allege the roles of the defendants, it appears they were involved in his past

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criminal trials, and it is possible that some of these individuals may be judges or prosecutors. The

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Supreme Court has held that judges acting within the course and scope of their judicial duties are

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See Heck v. Humphrey, 512 U.S. 477 (1994).
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absolutely immune from liability for damages under § 1983. Pierson v. Ray, 386 U.S. 547, 553-

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54 (1967). A judge is “subject to liability only when he has acted in the ‘clear absence of all

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jurisdiction.’” Stump v. Sparkman, 435 U.S. 349, 356-7 (1978) (quoting Bradley v. Fisher, 13

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Wall. 335, 351 (1872)). Plaintiff also sues Elizabeth Ramos, District Attorney. Prosecutors are

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absolutely immune from civil suits for damages under § 1983 which challenge activities related to

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the initiation and presentation of criminal prosecutions. Imbler v. Pachtman, 424 U.S. 409, 427-

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28 (1976). Determining whether a prosecutor’s actions are immunized requires a functional

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analysis. The classification of the challenged acts, not the motivation underlying them,

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determines whether absolute immunity applies. Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986)

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(en banc). The prosecutor’s quasi-judicial functions, rather than administrative or investigative

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functions, are absolutely immune. Thus, even charges of malicious prosecution, falsification of

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evidence, coercion of perjured testimony and concealment of exculpatory evidence will be

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dismissed on grounds of prosecutorial immunity. See Stevens v. Rifkin, 608 F.Supp. 710, 728

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(N.D. Cal. 1984). Plaintiff cannot bring suit against immune defendants.

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C. Amending the Complaint

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The amended complaint, in addition to alleging facts establishing the existence of federal

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jurisdiction, must contain a short and plain statement of Plaintiff’s claim. The allegations of the

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complaint must be set forth in sequentially numbered paragraphs, with each paragraph number

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being one greater than the one before, each paragraph having its own number, and no paragraph

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number being repeated anywhere in the complaint. Each paragraph should be limited “to a single

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set of circumstances” where possible. Fed. R. Civ. P. 10(b). As noted above, forms are available

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to help plaintiffs organize their complaint in the proper way. They are available at the Clerk’s

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Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA 95814, or online at

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www.uscourts.gov/forms/pro-se-forms.

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Plaintiff must avoid excessive repetition of the same allegations. Plaintiff must avoid

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narrative and storytelling. That is, the complaint should not include every detail of what

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happened, nor recount the details of conversations (unless necessary to establish the claim), nor

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give a running account of plaintiff’s hopes and thoughts. Rather, the amended complaint should
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contain only those facts needed to show how the defendant legally wronged the Plaintiff.

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The amended complaint must not force the court and the defendants to guess at what is

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being alleged against whom. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996)

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(affirming dismissal of a complaint where the district court was “literally guessing as to what

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facts support the legal claims being asserted against certain defendants”). The amended

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complaint must not require the court to spend its time “preparing the ‘short and plain statement’

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which Rule 8 obligated plaintiffs to submit.” Id. at 1180. The amended complaint must not

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require the court and defendants to prepare lengthy outlines “to determine who is being sued for

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what.” Id. at 1179.

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Also, the amended complaint must not refer to a prior pleading in order to make Plaintiff’s

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amended complaint complete. An amended complaint must be complete in itself without

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reference to any prior pleading. Local Rule 220. This is because, as a general rule, an amended

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complaint supersedes the original complaint. See Pacific Bell Telephone Co. v. Linkline

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Communications, Inc., 555 U.S. 438, 456 n.4 (2009) (“[n]ormally, an amended complaint

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supersedes the original complaint”) (citing 6 C. Wright & A. Miller, Federal Practice &

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Procedure § 1476, pp. 556-57 (2d ed. 1990)). 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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II. PRO SE PLAINTIFF’S SUMMARY

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Your complaint is being dismissed because it complaint does not provide a clear statement

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of what happened to you, who did it, and how you was harmed. You may file an amended

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complaint that follows the instructions above, within 30 days of this order.

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III. CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is GRANTED.

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2. Plaintiff’s complaint (ECF No. 1) is DISMISSED because the complaint is frivolous.

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3. Plaintiff shall have 30 days from the date of this order to file an amended complaint

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that complies with the instructions given above. If plaintiff fails to timely comply with this order,

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the undersigned may recommend that this action be dismissed.

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DATED: June 13, 2017

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