Cervantes v. San Jose Sheriff's Department et al

Filing 18

ORDER REOPENING CASE AND DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge James Donato on 10/26/18. (lrcS, COURT STAFF) (Filed on 10/26/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ERNEST RODRIGUEZ CERVANTES,
Plaintiff,

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v.
SAN JOSE SHERIFF'S DEPARTMENT, et
al.,

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United States District Court
Northern District of California

Case No. 18-cv-00644-JD

ORDER REOPENING CASE AND
DISMISSING COMPLAINT WITH
LEAVE TO AMEND
Docket No. 17

Defendants.

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

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was dismissed without prejudice due to plaintiff’s failure to pay the filing fee or submit a motion

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to proceed in forma pauperis. Plaintiff has filed a motion to proceed in forma pauperis, which will

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be addressed in a separate order. The case is reopened and the Court will review the complaint.
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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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that: (1) a right secured by

United States District Court
Northern District of California

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the Constitution or laws of the United States was violated, and (2) the alleged deprivation was

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committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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LEGAL CLAIMS

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Plaintiff alleges that he was improperly arrested and detained by the police. “‘Federal law

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opens two main avenues to relief on complaints related to imprisonment: a petition for habeas

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corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979,

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as amended, 42 U.S.C. § 1983. Challenges to the lawfulness of confinement or to particulars

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affecting its duration are the province of habeas corpus.’” Hill v. McDonough, 547 U.S. 573, 579

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(2006) (quoting Muhammad v. Close, 540 U.S. 749, 750 (2004)). “An inmate’s challenge to the

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circumstances of his confinement, however, may be brought under § 1983.” Id.

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Habeas is the “exclusive remedy” for the prisoner who seeks “‘immediate or speedier

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release’” from confinement. Skinner v. Switzer, 131 S. Ct. 1289, 1293 (2011) (quoting Wilkinson

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v. Dotson, 544 U.S. 74, 82 (2005)); see Calderon v. Ashmus, 523 U.S. 740, 747 (1998); Edwards

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v. Balisok, 520 U.S. 641, 648 (1997); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). “Where the

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prisoner’s claim would not ‘necessarily spell speedier release,’ however, suit may be brought

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under § 1983.’” Skinner, 131 S. Ct. at 1293 (quoting Wilkinson, 544 U.S. at 82). As a

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consequence, challenges to prison conditions traditionally have been cognizable only via § 1983,

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while challenges implicating the fact or duration of confinement must be brought through a habeas
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petition. Docken v. Chase, 393 F.3d 1024, 1026 (9th Cir. 2004).
Plaintiff states that the Santa Clara SWAT team used excessive force in arresting him. He

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states he is currently detained pending murder charges. For relief he describes his injuries from

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the arrest, states that he has been detained for two years and seeks this Court to appoint counsel.

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The Court cannot appoint an attorney in plaintiff’s case. To the extent that he seeks to be released

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from custody, he may file a federal habeas petition after he has been convicted and he has

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exhausted his claims. To the extent plaintiff seeks money damages resulting from his arrest,

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plaintiff is informed that in order to recover damages for an allegedly unconstitutional conviction

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or imprisonment, or for other harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove that the conviction or

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United States District Court
Northern District of California

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sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a

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state tribunal authorized to make such determination, or called into question by a federal court’s

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issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). A claim

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for damages bearing that relationship to a conviction or sentence that has not been so invalidated is

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not cognizable under § 1983. Id. at 487. The complaint is dismissed with leave to amend to

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address the deficiencies noted above.
CONCLUSION

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1.

The Order of Dismissal (Docket No. 11) is VACATED and this case is

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REOPENED. The motion to present a late claim (Docket No. 17) is DENIED. Plaintiff shall

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present all of his claims in an amended complaint.

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2.

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 action.

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3.

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: October 26, 2018

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JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ERNEST RODRIGUEZ CERVANTES,

Case No. 18-cv-00644-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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SAN JOSE SHERIFF'S DEPARTMENT, et
al.,
Defendants.
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 October 26, 2018, 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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Ernest Rodriguez Cervantes ID: 16002835
County Jail
150 W. Hedding Street
San Jose, CA 95110

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Dated: October 26, 2018

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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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