(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)

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Case 2:21-cv-01401-CKD Document 9 Filed 09/08/21 Page 1 of 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERHAN KAVIK, 12 13 14 No. 2:21-cv-1401 CKD P Plaintiff, v. ORDER E. SAUCEDO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 19 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 Case 2:21-cv-01401-CKD Document 9 Filed 09/08/21 Page 2 of 5 1 The court is required to screen complaints brought by prisoners seeking relief against a 2 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 3 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 4 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 5 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 6 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 7 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 8 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 9 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 10 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 11 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 12 Cir. 1989); Franklin, 745 F.2d at 1227. 13 In order to avoid dismissal for failure to state a claim a complaint must contain more than 14 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 15 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 16 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 17 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 18 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 19 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 20 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 21 at 678. When considering whether a complaint states a claim upon which relief can be granted, 22 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 23 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 24 U.S. 232, 236 (1974). 25 The court has reviewed plaintiff’s complaint and finds that it fails to state a claim upon 26 which relief can be granted under federal law. Plaintiff’s complaint must be dismissed. The 27 court will, however, grant leave to file an amended complaint. 28 ///// 2 Case 2:21-cv-01401-CKD Document 9 Filed 09/08/21 Page 3 of 5 1 If plaintiff chooses to amend the complaint, plaintiff must point to facts demonstrating a 2 deprivation of plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). 3 Also, in his amended complaint, plaintiff must allege in specific terms how each named defendant 4 is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative 5 link or connection between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 6 423 U.S. 362 (1976). Furthermore, vague and conclusory allegations of official participation in 7 civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 8 1982). 9 In his complaint, plaintiff sues the California Department of Corrections and 10 Rehabilitation for damages based upon a violation of the Equal Protection Clause of the 11 Fourteenth Amendment. The Eleventh Amendment serves as a jurisdictional bar to suits brought 12 by private parties against a state or state agency unless the state or the agency consents to such 13 suit. See Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978) (per 14 curiam); Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982). The State of California 15 has not consented to suit with respect to claims arising under the Fourteenth Amendment for 16 damages. 17 Plaintiff alleges he has been subjected to harmful conditions of confinement. Plaintiff is 18 informed that in order to state a claim upon which relief can be granted under the Eighth 19 Amendment, he must allege facts indicating he has suffered sufficiently serious injury as a result 20 of a prison official’s deliberate indifference to a substantial risk of serious harm. Farmer v. 21 Brennan, 511 U.S. 825, 833-34 (1994). 22 In order to state a cognizable claim for violation of due process during things such 23 prisoner disciplinary proceedings, plaintiff must allege facts which suggest that he was deprived 24 of a protected liberty interest. Such liberty interests are “generally limited to freedom from 25 restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to 26 protection by the Due Process Clause of its own force, [citations omitted], nonetheless imposes 27 atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” 28 Sandin v. Connor, 515 U.S. 472, 484 (1995). If good conduct sentence credit was revoked as part 3 Case 2:21-cv-01401-CKD Document 9 Filed 09/08/21 Page 4 of 5 1 of prisoner disciplinary proceedings, and still has not been restored, plaintiff’s sole federal 2 remedy with respect to the disciplinary proceedings finding is a writ of habeas corpus which 3 plaintiff would seek under 28 U.S.C. § 2254. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). 4 Also, to the extent plaintiff seeks damages, plaintiff is informed he cannot proceed on a §1983 5 claim for damages if the claim implies the invalidity of his conviction or sentence. Heck v. 6 Humphrey, 512 U.S. 477, 487 (1994). 7 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 8 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 9 complaint be complete in itself without reference to any prior pleading. This is because, as a 10 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 11 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 12 longer serves any function in the case. Therefore, in an amended complaint, as in an original 13 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 14 In accordance with the above, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 16 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 17 shall be collected and paid in accordance with this court’s order to the Director of the California 18 Department of Corrections and Rehabilitation filed concurrently herewith. 19 3. Plaintiff’s complaint is dismissed. 20 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 21 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 22 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 23 number assigned this case and must be labeled “Amended Complaint.” Failure to file an 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 4 Case 2:21-cv-01401-CKD Document 9 Filed 09/08/21 Page 5 of 5 1 amended complaint in accordance with this order will result in a recommendation that this action 2 be dismissed. 3 Dated: September 8, 2021 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 1 kavi1401.14 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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