Williams v. Unknown

Filing 14

ORDER GRANTING MOTION TO RE-OPEN; DISMISSING WITH LEAVE TO AMENDgranting 9 Motion to Reopen Case; terminating 11 Motion to Strike 11 MOTION to Strike, 9 MOTION to Reopen Case (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 11/3/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DEXTER W. WILLIAMS,
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Plaintiff,
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v.
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PEOPLE OF STATE OF CALIFORNIA,
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Defendant.
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No. C 11-2877 LHK (PR)
ORDER GRANTING MOTION
TO RE-OPEN; DISMISSING
WITH LEAVE TO AMEND
(Docket Nos. 9, 11)

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Plaintiff, proceeding pro se, commenced this action by filing a motion to strike and

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supporting memorandum of points and authorities. On June 22, 2011, mail addressed to Plaintiff

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was returned to the Clerk of the Court with a notation that they were undeliverable. On August

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29, 2011, the Court dismissed this action pursuant to Northern District Local Rule 3-11, and

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entered judgment. On September 8, 2011, Plaintiff filed a letter stating that he received the order

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of dismissal and judgment, but could not understand why his mail was returned as undeliverable

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because he has been on death row at San Quentin State Prison since 1996. The Court construed

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the letter as a motion to re-open, and directed Plaintiff to file a complaint and either a filing fee,

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or a completed application to proceed in forma pauperis within thirty days. Plaintiff has timely

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complied with the Court’s order. Plaintiff’s motion for leave to proceed in forma pauperis is

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GRANTED in a separate order. For the reasons stated below, Plaintiff’s complaint is

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DISMISSED with leave to amend.
Order Granting Motion to Re-Open; Dismissing with Leave to Amend
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DISCUSSION
A.

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Standard of Review
A federal court must conduct a preliminary screening in 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). In its review, the Court must identify any cognizable claims and dismiss

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

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seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C.

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§ 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v.

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Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).

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To state a claim under 42 U.S.C. § 1983, 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 violation was committed by a person acting under the color of state law. See West v.

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

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B.

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Legal Claim
Plaintiff alleges in his complaint that the Fresno County Superior Court improperly

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ordered him to pay fines and restitution pursuant to state laws. Plaintiff claims that the

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imposition of fines and restitution violated the Ex Post Facto Clause, as well as his right to due

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process and equal protection.

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Plaintiff names as Defendant, the State of California. However, the Eleventh

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Amendment bars from the federal courts suits against a state by its own citizens, citizens of

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another state or citizens or subjects of any foreign state. Atascadero State Hosp. v. Scanlon, 473

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U.S. 234, 237-38 (1985). To the extent Plaintiff wishes to sue Fresno County Superior Court, it

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is also prohibited by the Eleventh Amendment. See, e.g., Greater Los Angeles Council on

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Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 & n.10 (9th Cir. 1987) (Eleventh Amendment bars

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suit against Superior Court of State of California regardless of relief sought). To the extent

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Plaintiff wishes to sue the judge who presided over his sentencing, a state judge is absolutely

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immune from civil liability for damages for acts performed in his judicial capacity. See Pierson

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Order Granting Motion to Re-Open; Dismissing with Leave to Amend
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v. Ray, 386 U.S. 547, 553-55 (1967) (applying judicial immunity to actions under 42 U.S.C.

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§ 1983). Thus, the Defendant is DISMISSED with prejudice from this suit.

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Moreover, aside from a brief paragraph mentioning “ex post facto,” and conclusory

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references to federal statutes, it is unclear what federal rights Plaintiff asserts were violated.

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Section 1983 does not impose liability for violations of duties of care arising out of state tort law.

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See DeShaney v. Winnebago County Social Servs. Dep’t, 489 U.S. 189, 201-03 (1989). Plaintiff

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mainly argues that the imposition of restitution and fines violated California statutes, but does

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not assert what federal rights are at issue. See Easton v. Crossland Mortgage Corp., 114 F.3d

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979, 982 (9th Cir. 1997) (acknowledging that the mere reference of a federal statute in a pleading

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will not convert a state law claim into a federal cause of action if the federal statute is not a

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necessary element of the state law claim and no preemption exists). Plaintiff’s proper course of

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action may be a challenge in the state courts to the imposition of his sentence.

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However, if Plaintiff can in good faith state a cognizable federal claim, he may file an
amended complaint in which he cures the deficiencies mentioned above.

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CONCLUSION

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For the foregoing reasons, the Court hereby orders as follows:

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1.

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The Clerk shall RE-OPEN this case. Defendant is DISMISSED with prejudice.

Plaintiff’s complaint is DISMISSED with leave to amend.
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If Plaintiff can cure the pleading deficiencies described above, he shall file an

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AMENDED COMPLAINT within thirty days from the date this order is filed. The amended

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complaint must include the caption and civil case number used in this order (C 11-2877 LHK

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(PR)) and the words AMENDED COMPLAINT on the first page. The amended complaint must

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indicate which specific, named Defendant(s) was involved in each cause of action, what each

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Defendant did, what effect this had on Plaintiff, and what right Plaintiff alleges was violated.

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Plaintiff may not incorporate material from the prior complaint by reference. If Plaintiff files an

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amended complaint, he must allege, in good faith, facts - not merely conclusions of law - that

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demonstrate that he is entitled to relief under the applicable federal statutes. Failure to file an

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Order Granting Motion to Re-Open; Dismissing with Leave to Amend
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amended complaint within thirty days and in accordance with this order may result in a

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dismissal of this action.

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Plaintiff is advised that an amended complaint supersedes the original complaint.

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“[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged

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in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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4.

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

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of Civil Procedure 41(b).

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IT IS SO ORDERED.
Dated:

11/3/11
LUCY H. KOH
United States District Judge

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Order Granting Motion to Re-Open; Dismissing with Leave to Amend
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