Garcia v. Inspector General

Filing 5

ORDER OF DISMISSAL WITH LEAVE TO AMEND re 1 Complaint filed by Danny Garcia. Signed by Judge James Donato on 4/7/17. (lrcS, COURT STAFF) (Filed on 4/7/2017)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DANNY GARCIA, Plaintiff, 8 9 10 United States District Court Northern District of California 13 ORDER OF DISMISSAL WITH LEAVE TO AMEND v. INSPECTOR GENERAL, Defendant. 11 12 Case No. 17-cv-01516-JD Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. He has been granted leave to proceed in forma pauperis. DISCUSSION 14 15 STANDARD OF REVIEW 16 Federal courts must engage in a preliminary screening of cases in which prisoners seek 17 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 18 § 1915A(a). In its review, the Court must identify any cognizable claims, and dismiss any claims 19 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 20 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 21 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 22 Cir. 1990). 23 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 24 claim showing that the pleader is entitled to relief.” Although a complaint “does not need detailed 25 factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to 26 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a 27 cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above 28 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations 1 omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its 2 face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face” 3 standard of Twombly: “While legal conclusions can provide the framework of a complaint, they 4 must be supported by factual allegations. When there are well-pleaded factual allegations, a court 5 should assume their veracity and then determine whether they plausibly give rise to an entitlement 6 to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 7 LEGAL CLAIMS 8 Plaintiff seeks money damages and injunctive relief due to the failure of the state Inspector 9 General to investigate plaintiff’s claims. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by the Constitution or laws of the United States was violated, and 11 United States District Court Northern District of California 10 (2) the alleged deprivation was committed by a person acting under the color of state law. West v. 12 Atkins, 487 U.S. 42, 48 (1988). 13 Federal district courts are without power to issue mandamus to direct state courts, state 14 judicial officers, or other state officials in the performance of their duties. A petition for a writ of 15 mandamus to compel a state court or official to take or refrain from some action is frivolous as a 16 matter of law. See Demos v. U.S. District Court, 925 F.2d 1160, 1161-62 (9th Cir. 1991) 17 (imposing no filing in forma pauperis order); Clark v. Washington, 366 F.2d 678, 681 (9th Cir. 18 1966) (attorney contested disbarment and sought reinstatement); Dunlap v. Corbin, 532 F. Supp. 19 183, 187 (D. Ariz. 1981) (plaintiff sought order from federal court directing state court to provide 20 speedy trial), aff’d without opinion, 673 F.2d 1337 (9th Cir. 1982); Newton v. Poindexter, 578 F. 21 Supp. 277, 279 (C.D. Cal. 1984) (§ 1361 has no application to state officers or employees); see 22 also In re Campbell, 264 F.3d 730, 731-32 (7th Cir. 2001) (denying petition for writ of mandamus 23 that would order state trial court to give petitioner access to certain trial transcripts which he 24 sought in preparation for filing state post-conviction petition; federal court may not, as a general 25 rule, issue mandamus to a state judicial officer to control or interfere with state court litigation). 26 Plaintiff previously alleged in another case that certain prison doctors and nurses were 27 deliberately indifferent to his serious medical needs. Garcia v. Kalisher, 15-cv-0045 JD. The 28 Court granted summary judgment in that action and closed the case and the Ninth Circuit affirmed 2 1 the decision. Docket Nos. 31, 38 in Garcia v. Kalisher, 15-cv-0045 JD. Plaintiff submitted a 2 request to the Inspector General regarding his medical treatment in an effort to have the prison and 3 prison doctors investigated. The Inspector General responded that they cannot provide legal 4 advice or assistance. Plaintiff seeks money damages and an investigation. 5 This Court cannot compel the Inspector General to conduct an investigation and plaintiff 6 has failed to state a claim under 42 U.S.C. § 1983 to provide for money damages. He has not 7 alleged that a right secured by the Constitution or laws of the United States was violated. While 8 he has a right to medical care, that claim has already been litigated, and plaintiff has not identified 9 that he has a right for the Inspector General to investigate. The complaint is dismissed with leave 10 to amend for plaintiff to present a federal claim. CONCLUSION United States District Court Northern District of California 11 12 1. The complaint is DISMISSED with leave to amend. The amended complaint must 13 be filed within twenty-eight (28) days of the date this order is filed and must include the caption 14 and civil case number used in this order and the words AMENDED COMPLAINT on the first 15 page. Because an amended complaint completely replaces the original complaint, plaintiff must 16 include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th 17 Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to 18 amend within the designated time will result in the dismissal of this case. 19 2. It is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep the 20 Court informed of any change of address by filing a separate paper with the clerk headed “Notice 21 of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to 22 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 23 Civil Procedure 41(b). 24 25 IT IS SO ORDERED. Dated: April 7, 2017 26 27 JAMES DONATO United States District Judge 28 3 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 DANNY GARCIA, Case No. 17-cv-01516-JD Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 INSPECTOR GENERAL, Defendant. 8 9 10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. United States District Court Northern District of California 11 12 13 14 15 That on April 7, 2017, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 Danny Garcia ID: V-30568 C.T.F. Rainer "A" 112 Low P.O. Box 705 Soledad, CA 93960 19 20 21 Dated: April 7, 2017 22 23 Susan Y. Soong Clerk, United States District Court 24 25 26 27 By:________________________ LISA R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?