Hill et al v. Department of Justice et al

Filing 8

ORDER OF DISMISSAL WITH LEAVE TO AMEND Amended Complaint due by 3/11/2013.. Signed by Judge Lucy H. Koh on 2/6/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 2/7/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DAVID CHARLES HILL,
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Plaintiff,
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vs.
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DEPARTMENT OF JUSTICE, et al.,

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Defendants.

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No. C 12-5008 LHK (PR)
ORDER OF DISMISSAL WITH
LEAVE TO AMEND

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Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint

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pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392-97

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(1971). Plaintiff has paid the filing fee. On November 21, 2012, the Court screened Plaintiff’s

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complaint, and dismissed it with leave to amend. On December 14, 2012, Plaintiff filed a motion

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for leave to amend his complaint, and his amended complaint. For the reasons that follow, the

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Court DISMISSES the amended complaint with leave to amend.
DISCUSSION

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A.

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

Order of Dismissal With Leave to Amend
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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, a plaintiff must allege two essential elements:

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

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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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B.

Legal Claims

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In his amended complaint, Plaintiff alleges that, on June 19, 2006, while he was a

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criminal defendant in United States v. Hill, No. 04-40052 DLJ, Defendants Lewis Davis,

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Assistant United States Attorney (“AUSA”), and Julie Salamon, defense counsel, stipulated that

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Plaintiff would be transported by the United States Marshal Service from Santa Rita Jail to

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Highland Hospital in Oakland, California, either on June 19, 2006, or June 20, 2006, to visit his

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mother for at least one hour. Plaintiff states that he was unaware of this stipulated order until

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more than three years after the fact. Plaintiff’s mother passed away on April 25, 2007. Plaintiff

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sues Charles Plummer, the Warden of the Santa Rita Jail, who had control over Plaintiff in June

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2006; AUSA Davis, assigned to prosecute Plaintiff’s criminal case; and Julie Salamon,

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Plaintiff’s defense counsel.

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The Court previously dismissed Julie Salamon with prejudice, noting that attorneys in

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private practice are not state actors. See Simmons v. Sacramento County Superior Court, 318

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F.3d 1156, 1161 (9th Cir. 2003); see also Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996)

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(attorneys are private actors). Action under color of state law can be found if a plaintiff can

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plead and prove facts which show that a defense attorney conspired with state officials. See

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Tower v. Glover, 467 U.S. 914, 919-20 (1984). However, Plaintiff has not done so.

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Plaintiff states that the Defendants were involved in a “civil conspiracy to deny . . .

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constitutional rights,” however, Plaintiff does not specify what constitutional rights were

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affected. A civil conspiracy is a combination of two or more persons who, by some concerted

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action, intend to accomplish some unlawful objective for the purpose of harming another which
Order of Dismissal With Leave to Amend
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results in damage. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999). Further,

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conspiracy is not itself a constitutional tort under 42 U.S.C. § 1983. Lacey v. Maricopa County,

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693 F.3d 896, 935 (9th Cir. 2012) (en banc). It does not enlarge the nature of the claims asserted

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by the plaintiff, as there must always be an underlying constitutional violation. Id. Here,

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Plaintiff does not even assert that Defendants reached some sort of agreement to prevent

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Plaintiff’s visitation. Thus, his conspiracy claim fails to state a claim for relief and is

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DISMISSED.

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In addition, assuming that AUSA Lewis is not immune from suit, see Imbler v.

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Pachtman, 424 U.S. 409, 430-31 (1976) (noting that a state prosecuting attorney is absolutely

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immune from suit when he is “pursuing a criminal prosecution” insofar as he acts within his role

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as an “advocate for the State” and his actions are “intimately associated with the judicial phase

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of the criminal process”), Plaintiff has not stated facts sufficient to link AUSA Lewis with any

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constitutional violation. The Court has already warned Plaintiff once that he must properly link

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each Defendant to his allegations. Even at the pleading stage, “[a] plaintiff must allege facts, not

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simply conclusions, that show that an individual was personally involved in the deprivation of

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his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Either personal

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involvement or integral participation of the officers in the alleged constitutional violation is

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required before liability may be imposed; liability may not be imposed based solely on an

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officer’s presence during the incident. See Hopkins v. Bonvicino, 573 F.3d 752, 769-70 (9th Cir.

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2009).

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As Plaintiff’s amended complaint currently reads, Plaintiff has failed to allege any causal

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connection between the actions of the Defendants and the harms allegedly suffered by Plaintiff.

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For example, Plaintiff merely states that Defendant Charles Plummer was the Warden of the

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Santa Rita County Jail when Plaintiff was housed there in 2006. Plaintiff further claims that

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AUSA Lewis had some unspecified responsibility to ensure that the Judge’s order to permit

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Plaintiff to visit his mother be carried out. Plaintiff has not alleged that either Defendant caused

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or was somehow responsible for the failure in transporting Plaintiff to visit his mother, or what

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constitutional right either of them violated. The Ninth Circuit has held that “[a] person ‘subjects’
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another to the deprivation of a constitutional right, within the meaning of section 1983, if he does

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an affirmative act, participates in another’s affirmative acts or omits to perform an act which he

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is legally required to do that causes the deprivation of which the complaint is made.” Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff must allege with at least some degree of

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particularity overt acts which Defendants engaged in that support Plaintiff’s claim. Id. Liability

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may not be imposed based solely on an officer’s presence during the incident. See Hopkins v.

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Bonvicino, 573 F.3d 752, 769-70 (9th Cir. 2009). Plaintiff is reminded that his “obligation to

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provide the ‘grounds of his ‘entitle[ment] to relief’ requires more than labels and conclusions,

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and a formulaic recitation of the elements of a cause of action will not do. . . . Factual

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allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 553-56 (2007) (citations omitted).

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To the extent Plaintiff wishes to raise a claim that Defendants somehow violated the Free

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Exercise Clause because Plaintiff’s mother wrote to him about religious ideals, he fails to state a

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claim. Plaintiff has not alleged that any Defendant burdened the practice of Plaintiff’s religion

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without any justification reasonably related to legitimate penological interests. See Shakur v.

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Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008). That is, Plaintiff does not aver that Defendants’

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actions impinged on his ability to practice his religion.

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Thus, Plaintiff’s complaint is DISMISSED. However, Plaintiff will be given one final
opportunity to amend his complaint to cure these deficiencies if he can do so in good faith.

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CONCLUSION
1.

The amended complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff

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shall file a SECOND AMENDED COMPLAINT within thirty days from the date this order is

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filed to cure the deficiencies described above. The second amended complaint must include the

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caption and civil case number used in this order (C 12-5008 LHK (PR)) and the words SECOND

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AMENDED COMPLAINT on the first page. Plaintiff may not incorporate material from the

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prior complaint by reference. Failure to file a second amended complaint within thirty days

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and in accordance with this order will result in dismissal of this action.

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Order of Dismissal With Leave to Amend
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2.

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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Defendants not named in an amended complaint are no longer defendants. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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3.

It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

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and all parties informed of any change of address and must comply with the Court’s orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:

2/6/13
LUCY H. KOH
United States District Judge

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Order of Dismissal With Leave to Amend
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