(PC) Davis v. Diaz et al

Filing 25

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 10/4/19 RECOMMENDING that this action be dismissed in its entirely without further leave to amend for failure to state a claim. Matter REFERRED to District Judge William B. Shubb. Within 14 days after being served with these findings and recommendations, any party may file written objections with the court. (Kastilahn, A)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DON ANGELO DAVIS, 12 13 14 15 No. 2:19-CV-0222-WBS-DMC-P Plaintiff, v. FINDINGS AND RECCOMMENDATIONS RALPH DIAZ, et al., Defendants. 16 17 18 19 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s first amended complaint (ECF No. 23). The court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 26 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 27 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 28 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 1 1 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege 2 with at least some degree of particularity overt acts by specific defendants which support the 3 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 4 impossible for the court to conduct the screening required by law when the allegations are vague 5 and conclusory. 6 7 8 9 I. PLAINTIFF’S ALLEGATIONS Plaintiff Don Angelo Davis is an inmate at Pelican Bay State Prison in Crescent City, California. Plaintiff appears to allege that various prison officials are involved in a scheme 10 to miscalculate the duration of his sentence. See ECF No. 23, pg. 5. None of the named 11 defendants are referenced in plaintiff’s allegations. 12 13 14 II. DISCUSSION When a state prisoner challenges the legality of his custody and the relief he seeks 15 is a determination that he is entitled to an earlier or immediate release, such a challenge is not 16 cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal remedy is a petition for a writ 17 of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda, 18 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 19 1995) (per curiam). Thus, where a § 1983 action seeking monetary damages or declaratory relief 20 alleges constitutional violations which would necessarily imply the invalidity of the prisoner’s 21 underlying conviction or sentence, or the result of a prison disciplinary hearing resulting in 22 imposition of a sanction affecting the overall length of confinement, such a claim is not 23 cognizable under § 1983 unless the conviction or sentence has first been invalidated on appeal, by 24 habeas petition, or through some similar proceeding. See Heck v. Humphrey, 512 U.S. 477, 483- 25 84 (1994) (concluding that § 1983 claim not cognizable because allegations were akin to 26 malicious prosecution action which includes as an element a finding that the criminal proceeding 27 was concluded in plaintiff’s favor); Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir. 1997) 28 (concluding that § 1983 claim not cognizable because allegations of procedural defects were an 2 1 attempt to challenge substantive result in parole hearing); cf. Neal, 131 F.3d at 824 (concluding 2 that § 1983 claim was cognizable because challenge was to conditions for parole eligibility and 3 not to any particular parole determination); cf. Wilkinson v. Dotson, 544 U.S. 74 (2005) 4 (concluding that § 1983 action seeking changes in procedures for determining when an inmate is 5 eligible for parole consideration not barred because changed procedures would hasten future 6 parole consideration and not affect any earlier parole determination under the prior procedures). 7 Here, success on plaintiff’s claims relating to miscalculation of his sentence would 8 clearly imply the invalidity of the term currently being imposed. To the extent plaintiff’s sentence 9 has not been invalidated, recalculated, or otherwise overturned, plaintiff’s claims are not 10 cognizable in this civil action. 11 Plaintiff was granted leave to amend his original complaint but has failed to allege 12 facts which establish a § 1983 claim. Plaintiff makes no factual reference to any of the defendants 13 named in the amended complaint, nor does he explain how they are responsible for the 14 deprivation of his rights. Plaintiff’s amended complaint is devoid of facts, filled with legal jargon, 15 and no clearer than his original complaint. Compare ECF No. 1 with ECF No. 23. 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 3 1 2 III. CONCLUSION Because it does not appear possible that the deficiencies identified herein can be 3 cured by amending the complaint, plaintiff is not entitled to leave to amend prior to dismissal of 4 the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 5 6 Based on the foregoing, the undersigned recommends that this action be dismissed in its entirely without further leave to amend for failure to state a claim. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court. Responses to objections shall be filed within 14 days after service of 11 objections. Failure to file objections within the specified time may waive the right to appeal. See 12 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 Dated: October 4, 2019 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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