(PC) Kavik v. Saucedo et al

Filing 9

ORDER signed by Magistrate Judge Carolyn K. Delaney on 9/8/2021 GRANTING plaintiff's #2 request to proceed ifp and DISMISSING plaintiff's complaint with leave to file an amended complaint within 30 days. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent order. (Yin, K)

Case 2:21-cv-01401-CKD Document 9 Filed 09/08/21 Page 1 of 5
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERHAN KAVIK,

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No. 2:21-cv-1401 CKD P
Plaintiff,

v.

ORDER

E. SAUCEDO, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. §

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1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. §

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636(b)(1).

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Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a

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declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted.

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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 separate order, the court will direct the appropriate agency to collect the

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initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court.

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Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding

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month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by

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the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account

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exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).
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Case 2:21-cv-01401-CKD Document 9 Filed 09/08/21 Page 2 of 5
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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 where 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); Franklin, 745 F.2d at 1227.

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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).

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The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon

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which relief can be granted under federal law. Plaintiff’s complaint must be dismissed. The

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court will, however, grant leave to file an amended complaint.

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Case 2:21-cv-01401-CKD Document 9 Filed 09/08/21 Page 3 of 5
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If plaintiff chooses to amend the complaint, plaintiff must point to facts demonstrating 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, in his amended complaint, plaintiff must allege in specific terms how each named defendant

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is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative

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link or connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode,

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423 U.S. 362 (1976). Furthermore, vague and conclusory allegations of official participation in

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

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1982).

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In his complaint, plaintiff sues the California Department of Corrections and

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Rehabilitation for damages based upon a violation of the Equal Protection Clause of the

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Fourteenth Amendment. The Eleventh Amendment serves as a jurisdictional bar to suits brought

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by private parties against a state or state agency unless the state or the agency consents to such

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suit. See Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978) (per

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curiam); Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982). The State of California

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has not consented to suit with respect to claims arising under the Fourteenth Amendment for

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damages.

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Plaintiff alleges he has been subjected to harmful conditions of confinement. Plaintiff is

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informed that in order to state a claim upon which relief can be granted under the Eighth

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Amendment, he must allege facts indicating he has suffered sufficiently serious injury as a result

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of a prison official’s deliberate indifference to a substantial risk of serious harm. Farmer v.

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Brennan, 511 U.S. 825, 833-34 (1994).

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In order to state a cognizable claim for violation of due process during things such

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prisoner disciplinary proceedings, plaintiff must allege facts which suggest that he was deprived

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of a protected liberty interest. Such liberty interests are “generally limited to freedom from

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restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to

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protection by the Due Process Clause of its own force, [citations omitted], nonetheless imposes

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atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”

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Sandin v. Connor, 515 U.S. 472, 484 (1995). If good conduct sentence credit was revoked as part
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Case 2:21-cv-01401-CKD Document 9 Filed 09/08/21 Page 4 of 5
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of prisoner disciplinary proceedings, and still has not been restored, plaintiff’s sole federal

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remedy with respect to the disciplinary proceedings finding is a writ of habeas corpus which

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plaintiff would seek under 28 U.S.C. § 2254. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

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Also, to the extent plaintiff seeks damages, plaintiff is informed he cannot proceed on a §1983

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claim for damages if the claim implies the invalidity of his conviction or sentence. Heck v.

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Humphrey, 512 U.S. 477, 487 (1994).

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Finally, 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 is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently 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 (ECF No. 2) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees

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shall be collected and paid in accordance with this court’s order to the Director of the California

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Department of Corrections and Rehabilitation filed concurrently herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice. The amended complaint must bear the docket

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number assigned this case and must be labeled “Amended Complaint.” Failure to file an

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Case 2:21-cv-01401-CKD Document 9 Filed 09/08/21 Page 5 of 5
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amended complaint in accordance with this order will result in a recommendation that this action

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be dismissed.

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Dated: September 8, 2021
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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