Johnson v. California Department of Corrections and Rehabilitation, et al.

Filing 9

ORDER signed by Magistrate Judge Kendall J. Newman on 12/13/2017 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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RAPHAEL MAURICE JOHNSON,

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No. 2:17-cv-2166 KJN 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. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 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.” Id. at 555. However, “[s]pecific

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facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what

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the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93

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

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complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most

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favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other

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grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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Plaintiff alleges violations of his civil rights at R.J. Donovan Correctional Facility

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(“RJDCF”) and at the California Medical Facility (“CMF”). RJDCF is located in the United

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States District Court for the Southern District of California.

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Court records indicate that plaintiff filed an action in the Fresno Division of this court

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raising similar, if not the same, claims regarding conditions at RJDCF. See 1:17-cv-1380 SKO

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P.1 On October 17, 2017, 1:17-cv-1380 SKO P was transferred from the Fresno Division to the

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District Court for the Southern District of California. Accordingly, plaintiff’s claims regarding

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RJDCF are dismissed because they are duplicative of the claims raised in 1:17-cv-1380 SKO P,

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which will now be litigated in the Southern District. See Cato v. United States, 70 F.3d 1103,

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1105 n.2 (9th Cir. 1995) (prisoner’s complaint is considered frivolous under 28 U.S.C. § 1915 if

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it “merely repeats pending or previously litigated claims.”)

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Plaintiff also alleges that he is being confined past his release date. Plaintiff seeks money

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damages regarding his alleged illegal confinement. Plaintiff may also be requesting an immediate

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release from prison.

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When a state prisoner challenges the legality of his custody and the relief he seeks is a

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determination that he is entitled to an earlier or immediate release, such a challenge is not

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cognizable under 42 U.S.C. § 1983 and the prisoner's sole federal remedy is a petition for a writ

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of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Thus, where a § 1983

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action seeking monetary damages or declaratory relief alleges constitutional violations which

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would necessarily imply the invalidity of the prisoner's underlying conviction or sentence, or the

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result of a prison disciplinary hearing resulting in imposition of a sanction affecting the overall

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length of confinement, such a claim is not cognizable under § 1983 unless the conviction or

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Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626,
635 n.1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir.), cert. denied, 454 U.S. 1126 (1981).
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sentence has first been invalidated on appeal, by habeas petition, or through some similar

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proceeding. See Heck v. Humphrey, 512 U.S. 477, 483–84 (1994) (concluding that § 1983 claim

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not cognizable because allegations were akin to malicious prosecution action which includes as

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an element a finding that the criminal proceeding was concluded in plaintiff's favor).

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To the extent plaintiff seeks an order directing prison officials to release him from

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custody, he must file a habeas corpus petition for this relief. With respect to plaintiff’s claim for

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damages, the only evidence provided with plaintiff’s complaint in support of his claim that he has

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been ordered released is a minute order from the San Bernardino County Superior Court dated

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December 14, 2016. (ECF No. 1 at 26.) This minute order lists a number of charges against

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plaintiff. (Id.) This minute order includes a section titled “Custody Status,” which states: “Case

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Custody: Released.” (Id.) This minute order also indicates that plaintiff, his lawyer and the

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district attorney were not present. (Id.) The minute order contains a section titled “Proceedings,”

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which states: “Court has read and considered reports filed by: Defendant. No action taken.”

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(Id.)

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The minute order described above does not clearly demonstrate that plaintiff is entitled to

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be released from custody on the cases listed on this document. Accordingly, plaintiff’s claim for

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damages on grounds that he is being held past his release date is dismissed.

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Turning to the claims challenging conditions at CMF, plaintiff names three defendants:

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the California Department of Corrections and Rehabilitation (“CDCR”), CDCR Director Kernan

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and the CMF Warden.

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For the reasons stated herein, plaintiff’s claims against defendant CDCR are barred by the

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Eleventh Amendment. In general, the Eleventh Amendment bars suits against a state, absent the

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state’s affirmative waiver of its immunity or congressional abrogation of that immunity.

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Pennhurst v. Halderman, 465 U.S. 89, 98–99, (1984); see also Krainski v. Nev. ex rel. Bd. of

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Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) (“The Eleventh

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Amendment bars suits against the State or its agencies for all types of relief, absent unequivocal

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consent by the state.”). The State of California has not consented to suit. See Brown v.

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California Dept. of Corrections, 554 F.3d 747, 752 (9th Cir. 2009) (State of California has not
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waived its Eleventh Amendment immunity with respect to claims brought under § 1983 in federal

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court). Accordingly, plaintiff’s claims against defendant CDCR are barred by the Eleventh

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Amendment.

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Plaintiff alleges that that on October 6, 2017, he was attacked by correctional officers in

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his cell at CMF. (ECF No. 1 at 15-16.) However, plaintiff does not name as defendants the

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officers who allegedly attacked him. In addition, plaintiff does not describe how defendants

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Kernan and CMF Warden were involved in the alleged attack.

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983

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liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no

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affirmative link between the incidents of police misconduct and the adoption of any plan or policy

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demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another

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to the deprivation of a constitutional right, within the meaning of § 1983, if he does an

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affirmative act, participates in another’s affirmative acts or omits to perform an act which he is

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legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy,

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588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979)

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(no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d

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438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert.

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denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of
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official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal

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participation is insufficient).

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Because plaintiff has failed to link defendants Kernan and CMF Warden to his claim
alleging that he was attacked at CMF, the claims against these defendants are dismissed.

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In summary, if plaintiff files an amended complaint, he should not include his claims

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challenging conditions at RJDCF. Plaintiff should also not include any request for his release

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from custody, as this claim should be raised in a habeas corpus petition. If plaintiff alleges a

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claim for damages based on his alleged improper confinement, he must include some

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documentation demonstrating that he is entitled to immediate release. Finally, the amended

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complaint must link the named defendants to the alleged deprivations.

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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. Bd. 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

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dismissal of this action.

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Dated: December 13, 2017

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John2166.14

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAPHAEL MAURICE JOHNSON,

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No. 2:17-cv-2166 KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

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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