Schenck v. Brown et al

Filing 8

ORDER OF DISMISSAL WITH LEAVE TO AMEND (SI, COURT STAFF) (Filed on 10/12/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RYKER WILLIAM SCHENCK,

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United States District Court
For the Northern District of California

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No. C 11-2502 SI (pr)

Plaintiff,

ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.
STATE OF CALIFORNIA; et al.,

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Defendants.
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INTRODUCTION

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Ryker William Schenck, a prisoner housed at North Kern State Prison, filed a pro se civil

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rights action under 42 U.S.C. § 1983. His complaint is now before the court for review under

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28 U.S.C. § 1915A.

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BACKGROUND

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The complaint appears to concern mainly Schenck's experiences in the Marin County

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Superior Court in a civil action, as he alleges that a court commissioner "violated federal

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procedures of civil codes & the one judgment rule against Schenck in 1991. Statute not barred

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by time limitations as plaintiff was paid, but has not to date: filed a satisfaction of judgment in

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case; and then, has also refused any double satisfaction payment." Complaint, p. 3.1 Schenck

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also appears to complain about one or more encounters with law enforcement personnel in Marin

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County. And he apparently is attempting to challenge his current conviction, as well as the

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The state court civil action has some connection to his current imprisonment, because he stated
in a later filing that he had pled guilty to assault with a deadly weapon "for firing a bullet into Court
Commissioner Randolph Heubach's house because of 20 years of irreversible damage to me and my
family." Docket # 6.

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treatment of his wife by law enforcement agents.

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DISCUSSION

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A federal court must engage in a preliminary screening of any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity. See

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28 U.S.C. §1915A(a). 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.

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§1915A(b)(1),(2).

See 28 U.S.C.

United States District Court
For the Northern District of California

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

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

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988).

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The complaint has several deficiencies that require an amended complaint to be filed.

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First, the allegations of the complaint do not make enough sense for the court to understand the

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specific constitutional violations Schenck is attempting to allege. Although it can be discerned

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that he is unhappy with something that happened in a state court case, the particular problem is

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not alleged in a comprehensible way. He does not allege the violation of any federal

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constitutional right, and does not allege facts showing such a violation. The complaint does not

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comply with the requirement that the averments be "simple, concise, and direct." Federal Rule

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of Civil Procedure 8(a) requires that the complaint set forth "a short and plain statement of the

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claim showing that the pleader is entitled to relief." A complaint that fails to state the specific

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acts of the defendant which violated the plaintiff's rights fails to meet the notice requirements

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of Rule 8(a). Hutchinson v. United States, 677 F.2d 1322, 1328 n.5 (9th Cir. 1982). At the

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other end of the spectrum, Rule 8(e) requires that each averment of a pleading be "simple,

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concise, and direct," and also may be the basis for dismissal. McHenry v. Renne, 84 F.3d 1172,

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1179 (9th Cir. 1996) (affirming dismissal of complaint that was "argumentative, prolix, replete

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with redundancy, and largely irrelevant"). The complaint here does not comply with Rule 8(e).
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There are no simple, concise and direct averments, and instead the rambling factual allegations

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are intertwined with apparently irrelevant surplusage that leaves the court guessing as to what

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the plaintiff means. In his amended complaint, plaintiff must assemble a coherent narrative of

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his claims.

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Second, if Schenck wants to challenge his criminal conviction or sentence, he must file

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a petition for writ of habeas corpus, but only after he finishes his appeal and exhausts state court

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remedies as to all claims he wishes to present to the federal court. See Preiser v. Rodriguez, 411

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U.S. 475, 500 (1973).
Third, any claim for damages based on an allegedly wrongful conviction is barred by the

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United States District Court
For the Northern District of California

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Heck rule. The case of Heck v. Humphrey, 512 U.S. 477 (1994), held that a plaintiff cannot

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bring a civil rights action for damages for a wrongful conviction unless that conviction already

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has been determined to be wrongful. See id. at 486-87. A conviction may be determined to be

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wrongful by, for example, being reversed on appeal or being set aside when a state or federal

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court issues a writ of habeas corpus. See id. The Heck rule also prevents a person from bringing

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an action that -- even if it does not directly challenge the conviction -- would imply that the

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conviction was invalid. The practical importance of this rule is that a plaintiff cannot attack his

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conviction in a civil rights action for damages; the conviction must have been successfully

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attacked before the civil rights action for damages is filed. If plaintiff's conviction is ever set

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aside, he may file a new civil rights action asserting claims that his prosecution was

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unconstitutional.

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Fourth, Schenck has no standing to complain about violations of his wife's civil rights.
Only she has standing to assert such claims and may file a separate action to do so.

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Fifth, in his amended complaint, Schenck should take care to link defendants to each

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alleged constitutional violations. The defendants listed in the complaint are the State of

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California, Marin County Court Commissioner Heubach, U.S. District Judge Wilken, and

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Stephanie Hook (Schenck's daughter). It is unclear why he has listed three of these defendants,

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as there are no allegations against the State of California, Judge Wilken, or Stephanie Hook. In

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preparing his amended complaint, Schenck should bear in mind that liability under § 1983 arises
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only upon a showing of personal participation by the defendant. Taylor v. List, 880 F.2d 1040,

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1045 (9th Cir. 1989). He should identify each involved defendant by name and link each of

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them to each claim by explaining what each defendant did or failed to do that caused a violation

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of his constitutional rights. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Finally, Schenck writes that he needs an "appeals attorney in Civ. Case 093411."

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Complaint, p. 4. That case number apparently refers to his criminal case. This court does not

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appoint attorneys for appeals in state court. Any requests or motions pertaining to his state court

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criminal case should be filed in that case and not in this case.

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United States District Court
For the Northern District of California

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CONCLUSION

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For the foregoing reasons, the complaint is dismissed with leave to amend. The amended

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complaint must be filed no later than November 14, 2011, and must include the caption and civil

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case number used in this order and the words AMENDED COMPLAINT on the first page.

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Plaintiff is cautioned that his amended complaint must be a complete statement of his claims and

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will supersede existing pleadings. See London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th

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Cir. 1981) ("a plaintiff waives all causes of action alleged in the original complaint which are

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not alleged in the amended complaint.") Failure to file the amended complaint by the deadline

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will result in the dismissal of the action.

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IT IS SO ORDERED.
Dated: October 12, 2011

_______________________
SUSAN ILLSTON
United States District Judge

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