Lewis v. Siegal et al

Filing 13

ORDER Dismissing Complaint with Leave to Amend. Signed by Judge Nandor J. Vadas on 6/16/2017. (Attachments: # 1 Certificate/Proof of Service)(njvlc1, COURT STAFF) (Filed on 6/16/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISON

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WESLEY LEWIS,

Case No. 16-cv-7279-NJV (PR)

Plaintiff,
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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.
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SARA SIEGAL, et. al,

United States District Court
Northern District of California

Defendants.
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Plaintiff, a detainee, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. The

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court dismissed the original complaint with leave to amend and plaintiff has filed an amended

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complaint. (Docs. 9, 11.)
DISCUSSION

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Standard of Review

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims

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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek

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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se

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pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the

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statement need only “‘give the defendant fair notice of what the . . . . claim is and the grounds

upon which it rests.’”” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although

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in order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff's

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obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . .

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Factual allegations must be enough to raise a right to relief above the speculative level.” Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must

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proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. The United

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States Supreme Court has recently explained the “plausible on its face” standard of Twombly:

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“While legal conclusions can provide the framework of a complaint, they must be supported by

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factual allegations. When there are well-pleaded factual allegations, a court should assume their

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United States District Court
Northern District of California

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veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft

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v. Iqbal, 556 U.S. 662, 679 (2009).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged deprivation was committed by a person acting under the color of state law. West v. Atkins,

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487 U.S. 42, 48 (1988).

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Legal Claims

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Plaintiff challenges certain conditions of his parole.

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In order to recover damages for an allegedly unconstitutional conviction or imprisonment,

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or for other harm caused by actions whose unlawfulness would render a conviction or sentence

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invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction or sentence has been reversed

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on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to

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make such determination, or called into question by a federal court’s issuance of a writ of habeas

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corpus. Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). A claim for damages bearing that

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relationship to a conviction or sentence that has not been so invalidated is not cognizable under §

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1983. Id. at 487.

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A challenge to a portion of the discretionary parole conditions imposed by the CDCR or

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parole authority may be pursued in a § 1983 action if success on the claim would not imply the
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invalidity of the plaintiff’s conviction or state court sentence. See Thornton v. Brown, 757 F.3d

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834, 841 (9th Cir. 2014). “Not all parole conditions are essential to the ‘fact’ of a parolee’s

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confinement; and a parolee’s challenge to parole terms that are more analogous to ‘conditions’ in

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the prison context will not speed the parolee’s release from parole.” Id. at 845.

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Plaintiff states that he was released from CDCR custody in July 2016 but the Santa Cruz

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Probation Department added terms of his parole that he take all medication prescribed by a doctor.

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Plaintiff seeks to have this term of parole removed. When the court reviewed the original

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complaint, plaintiff was in custody at the Santa Cruz County Jail. It was unclear if he was in

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custody for violating the terms of parole or for a separate reason.

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If plaintiff was challenging the terms of parole and he was not incarcerated due to the

United States District Court
Northern District of California

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underlying conviction and violating parole then a § 1983 action may be appropriate. If plaintiff

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was in custody due to violating these parole conditions, then a finding that the conditions were

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unlawful would undermine the validity of plaintiff’s parole violation jail sentence and he would

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not be allowed proceed with a § 1983 action. See Heck, 512 U.S. at 487. In that instance plaintiff

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would need to file a habeas petition after exhausting state court remedies. The complaint was

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dismissed with leave to amend for plaintiff to provide more information concerning why he was

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incarcerated and if his underlying conviction and terms of parole were related to his current

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placement in county jail.

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Plaintiff has filed an amended complaint but has failed to address the deficiencies outlined

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in the prior court order. Plaintiff states he was incarcerated when he filed the prior complaint, but

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was released on February 9, 2017, but was incarcerated again on April 5, 2017, and is still

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incarcerated. It is still not clear if plaintiff is in custody due to violating the terms of parole that he

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challenges in this action. If he is in custody for violating the terms of parole he must file a habeas

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petition. The complaint is dismissed to provide more information as discussed above.

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CONCLUSION
1. The amended complaint is DISMISSED with leave to amend in accordance with the

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standards set forth above. The second amended complaint must be filed within twenty-eight (28)

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days of the date this order is filed and must include the caption and civil case number used in this
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order and the words SECOND AMENDED COMPLAINT on the first page. Because an amended

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complaint completely replaces the original complaint, plaintiff must include in it all the claims he

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wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not

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incorporate material from the original complaint by reference. Failure to amend within the

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designated time will result in the dismissal of this case.

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2. It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court

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informed of any change of address by filing a separate paper with the clerk headed “Notice of

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Change of Address,” and must comply with the court's orders in a timely fashion. Failure to do so

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may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil

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United States District Court
Northern District of California

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Procedure 41(b).
IT IS SO ORDERED.
Dated: June 16, 2017
________________________
NANDOR J. VADAS
United States Magistrate Judge

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