Walker v. California Department of Corrections et al

Filing 11

ORDER signed by Magistrate Judge Carolyn K. Delaney on 2/1/2018 DISMISSING complaint with leave to amend. Plaintiff granted 30 days to file an amended complaint. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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G. DANIEL WALKER,

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No. 2:17-cv-2124 JAM CKD P

Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se. On October 12, 2017, defendants Medina,

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Stainer, Muniz, McCall and Kernan (defendants) removed this action from the Superior Court of

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Sacramento County pursuant to 28 U.S.C. § 1441(a) which permits removal if a federal court has

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original jurisdiction over claims brought in a state court. In their notice of removal, defendants

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assert “this action arises under 42 U.S.C. § 1983 and includes claims under the First and

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Fourteenth Amendments. . .” This proceeding was referred to this court by Local Rule 302

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pursuant to 28 U.S.C. § 636(b)(1).

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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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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

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upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

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at 678. When considering whether a complaint states a claim upon which relief can be granted,

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the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and

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construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).
After reviewing plaintiff’s complaint (ECF No 1. at 78), the court finds that it fails to state

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a claim upon which relief can be granted. There are several problems with the complaint,

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including, most notably, plaintiff fails to point to facts which reasonably suggest any named-

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defendant denied plaintiff rights guaranteed to him under federal law. There can be no liability

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under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s

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actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Plaintiff has not

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adequately linked a defendant to any actionable deprivation.

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Also, to the extent plaintiff takes issue with the processing of prisoner grievances, plaintiff

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has no federal right to a prison grievance system. Ramirez v. Galazza, 334 F.3d 850, 860 (9th

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Cir. 2003). Therefore, he has no freestanding right to have a prisoner grievance processed in any

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particular way or processed at all.

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Finally, plaintiff names the California Department of Corrections and Rehabilitation

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(CDCR) as a defendant, but CDCR is immune from federal suit under the Eleventh Amendment.

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Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam).

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For these reasons, plaintiff’s complaint must be dismissed. At this point, plaintiff has two

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options. First, he may attempt to cure the deficiencies in his claims arising under federal law by

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filing an amended complaint. Alternatively, if plaintiff does not wish to amend, this action will

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be remanded to the Superior Court of Sacramento County where plaintiff may proceed on any

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claims arising under California law. See 28 U.S.C. § 1447(c).

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If plaintiff elects to file an amended complaint, plaintiff is informed as follows:

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1. Plaintiff must demonstrate how the conditions complained of have resulted in a

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deprivation of plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).

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Also, the complaint must allege in specific terms how each named defendant is involved. There

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can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection

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between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362

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(1976). Furthermore, vague and conclusory allegations of official participation in civil rights

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

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2. Plaintiff does not have a federal right not to have mail sent to or received from a court

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opened outside of his presence. See Hayes v. Idaho Correctional Center, 849 F.3d 1204, 1211

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(9th Cir. 2017).

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3. Plaintiff has a First Amendment right to send and receive mail. See Thornburgh v.

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Abbott, 490 U.S. 401, 407 (1989). However, prisons may adopt regulations which impinge on an

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inmate's First Amendment rights if such regulations are “reasonably related to legitimate

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penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 (1987). Such interests include

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“security, order, and rehabilitation.” Procunier v. Martinez, 416 U.S. 396, 413 (1974).

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4. The court cannot refer to a prior pleading in order to make plaintiff’s amended

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complaint complete. Local Rule 220 requires that an amended complaint be complete in itself

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without reference to any prior pleading. This is because, as a general rule, an amended complaint

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supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once

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plaintiff files an amended complaint, the original pleading no longer serves any function in the

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case. Therefore, in an amended complaint, as in an original complaint, each claim and the

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involvement of each defendant must be sufficiently alleged.
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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s complaint is dismissed.

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2. Plaintiff is granted thirty days to file an amended complaint that complies with the

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requirements of this order, the Civil Rights Act, the Federal Rules of Civil Procedure, and the

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Local Rules of Practice; the amended complaint must bear the docket number assigned this case

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and must be labeled “Amended Complaint;” failure to file an amended complaint in accordance

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with this order will result in a recommendation that all claims arising under federal law be

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dismissed and that this case be remanded to the Superior Court of Sacramento County.

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Dated: February 1, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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