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)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANNY GARCIA,
Plaintiff,

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United States District Court
Northern District of California

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.
INSPECTOR GENERAL,
Defendant.

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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

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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.” Although a complaint “does not need detailed

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factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

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relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above

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the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

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omitted). A complaint must proffer “enough facts to state a claim to relief that is plausible on its

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face.” Id. at 570. The United States Supreme Court has explained the “plausible on its face”

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standard of Twombly: “While legal conclusions can provide the framework of a complaint, they

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must be supported by factual allegations. When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they plausibly give rise to an entitlement

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to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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LEGAL CLAIMS

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Plaintiff seeks money damages and injunctive relief due to the failure of the state Inspector

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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

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United States District Court
Northern District of California

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(2) the alleged deprivation was committed by a person acting under the color of state law. West v.

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

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Federal district courts are without power to issue mandamus to direct state courts, state

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judicial officers, or other state officials in the performance of their duties. A petition for a writ of

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mandamus to compel a state court or official to take or refrain from some action is frivolous as a

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matter of law. See Demos v. U.S. District Court, 925 F.2d 1160, 1161-62 (9th Cir. 1991)

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(imposing no filing in forma pauperis order); Clark v. Washington, 366 F.2d 678, 681 (9th Cir.

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1966) (attorney contested disbarment and sought reinstatement); Dunlap v. Corbin, 532 F. Supp.

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183, 187 (D. Ariz. 1981) (plaintiff sought order from federal court directing state court to provide

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speedy trial), aff’d without opinion, 673 F.2d 1337 (9th Cir. 1982); Newton v. Poindexter, 578 F.

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Supp. 277, 279 (C.D. Cal. 1984) (§ 1361 has no application to state officers or employees); see

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also In re Campbell, 264 F.3d 730, 731-32 (7th Cir. 2001) (denying petition for writ of mandamus

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that would order state trial court to give petitioner access to certain trial transcripts which he

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sought in preparation for filing state post-conviction petition; federal court may not, as a general

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rule, issue mandamus to a state judicial officer to control or interfere with state court litigation).

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Plaintiff previously alleged in another case that certain prison doctors and nurses were

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deliberately indifferent to his serious medical needs. Garcia v. Kalisher, 15-cv-0045 JD. The

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Court granted summary judgment in that action and closed the case and the Ninth Circuit affirmed
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the decision. Docket Nos. 31, 38 in Garcia v. Kalisher, 15-cv-0045 JD. Plaintiff submitted a

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request to the Inspector General regarding his medical treatment in an effort to have the prison and

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prison doctors investigated. The Inspector General responded that they cannot provide legal

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advice or assistance. Plaintiff seeks money damages and an investigation.

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This Court cannot compel the Inspector General to conduct an investigation and plaintiff

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has failed to state a claim under 42 U.S.C. § 1983 to provide for money damages. He has not

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alleged that a right secured by the Constitution or laws of the United States was violated. While

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he has a right to medical care, that claim has already been litigated, and plaintiff has not identified

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that he has a right for the Inspector General to investigate. The complaint is dismissed with leave

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to amend for plaintiff to present a federal claim.
CONCLUSION

United States District Court
Northern District of California

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1.

The complaint is DISMISSED with leave to amend. The amended complaint must

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be filed within twenty-eight (28) days of the date this order is filed and must include the caption

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

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page. Because an amended complaint completely replaces the original complaint, plaintiff must

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include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

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Cir. 1992). He may not incorporate material from the original complaint by reference. Failure to

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amend within the 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

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

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of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

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

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Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated: April 7, 2017

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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANNY GARCIA,

Case No. 17-cv-01516-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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INSPECTOR GENERAL,
Defendant.

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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

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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.

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Danny Garcia ID: V-30568
C.T.F. Rainer "A" 112 Low
P.O. Box 705
Soledad, CA 93960

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Dated: April 7, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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