Hardaway v. Board of Prison Terms, et al

Filing 13

ORDER of Dismissal With Leave to Amend. Signed by Judge Ronald M. Whyte on 3/27/13. (jg, COURT STAFF) (Filed on 3/27/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SONNY RAY HARDAWAY,

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Plaintiff,

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v.
BOARD OF PRISON TERMS, et al.,

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Defendants.

No. C 12-5372 RMW (PR)
ORDER OF DISMISSAL WITH
LEAVE TO AMEND

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Plaintiff, a state prisoner proceeding pro se, filed a federal civil rights complaint. Upon
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initial screening, the court dismissed it with leave to amend, directing plaintiff to provide a short
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and concise statement of the claim. The court further advised plaintiff that his claim(s) might
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better be presented in a federal habeas petition. The court gave plaintiff the option to file an
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amended complaint if he could proffer enough facts to state a plausible claim for relief. Plaintiff
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has filed an untimely amended federal civil rights complaint. For the reasons that follow, the
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court sua sponte extends the time for filing, deems the amended complaint timely filed, and
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DISMISSES the amended complaint with leave to amend.
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DISCUSSION
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A.

Standard of Review

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A federal court must conduct a preliminary screening in any case in which a prisoner
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Order of Dismissal with Leave to Amend
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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 id. § 1915A(b)(1),

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(2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police

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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.

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Plaintiff’s Claims
Plaintiff states that in 2011, he had a parole suitability hearing. Plaintiff claims that

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defendants have placed false information in his file, committed defamation, libel and slander,

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and harmed his reputation. Plaintiff also alleges that defendants did so because plaintiff is black,

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and they were retaliating against him because he had filed administrative appeals.

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There are several deficiencies with plaintiff’s amended complaint. First, the Board of

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Prison Terms is entitled to Eleventh Amendment immunity. See, e.g., Brown v. Cal. Dep’t of

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Corrs., 554 F.3d 747, 752 (9th Cir. 2009). Thus, it is DISMISSED with prejudice. Second,

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although plaintiff names Jeffrey Champlin as a defendant, he merely states that Champlin is a

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“representative in Sacramento.” However, plaintiff must be able to show that the defendant

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proximately caused the deprivation of a federally protected right. See Leer v. Murphy, 844 F.2d

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628, 634 (9th Cir. 1988). Plaintiff must be able to “set forth specific facts as to each individual

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defendant’s” actions which violated his or her rights. Id. at 634. Even at the pleading stage, “[a]

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plaintiff must allege facts, not simply conclusions, that show that an individual was personally

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involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th

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Cir. 1998). At this time, defendant Champlin is DISMISSED without prejudice.

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In addition, plaintiff fails to state a claim. Defamation, libel, and slander are state law

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causes of action rather than a federal claim, and state law violations are not cognizable under
Order of Dismissal with Leave to Amend
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Section 1983. See Cornejo v. County of San Diego, 504 F.3d 853, 855 n.3 (9th Cir. 2007).

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Thus, those claims are DISMISSED without leave to amend.

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Finally, plaintiff’s potential equal protection, due process, and retaliation claims fail to

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allege facts showing that any defendant was personally involved in depriving plaintiff of his

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rights. Again, plaintiff has not provided the court with the sufficient information necessary to

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determine whether any claim for relief has been stated against any defendant. “While a

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complaint . . . does not need detailed factual allegations, . . . a plaintiff’s obligation to provide

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

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

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

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Twombly, 550 U.S. 544, 553-56, (2007) (citations omitted). A complaint should be dismissed if

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it does not proffer “enough facts to state a claim for relief that is plausible on its face.” Id at 570.

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However, district courts must afford pro se prisoner litigants an opportunity to amend to correct

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any deficiency in their complaints. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en

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banc).

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Accordingly, the court will DISMISS the complaint one final time with LEAVE TO

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AMEND to allow plaintiff an opportunity to clearly state his grounds for relief under 42 U.S.C.

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§ 1983, and provide sufficient facts to support each claim if he can do so in good faith.

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CONCLUSION
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Plaintiff’s amended complaint is DISMISSED with leave to amend. Defendant

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Board of Prison Terms is DISMISSED with prejudice. Defendant Champlin is DISMISSED

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without prejudice.

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2.

If plaintiff can cure the pleading deficiencies described above, he shall file a

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

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amended complaint must include the caption and civil case number used in this order (C 12-5372

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RMW (PR)) and the words SECOND AMENDED COMPLAINT on the first page. The

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amended complaint must indicate which specific, named defendant(s) was involved in each

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cause of action, what each defendant did, what effect this had on plaintiff and what right plaintiff
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alleges was violated. Plaintiff may not incorporate material from the prior complaint by

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reference. If plaintiff files a second amended complaint, he must allege, in good faith, facts - not

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merely conclusions of law - that demonstrate that he is entitled to relief under the applicable

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federal statutes. Failure to file a second amended complaint within thirty days and in

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accordance with this order will result in a finding that further leave to amend would be

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futile and this action will be dismissed.

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3.

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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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:
RONALD M. WHYTE
United States District Judge

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Order of Dismissal with Leave to Amend
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

HARDAWAY,

Case Number: CV12-05372 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
BOARD OF PRISON TERMS et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on March 27, 2013, 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.

Sonny Ray Hardaway P-45579
B-2217
Salinas Valley State Prison
PO Box 1050
Soledad, CA 93960
Dated: March 27, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk