Green v. De La Cruz et al

Filing 9

ORDER OF DISMISSAL. Signed by Judge Lucy H. Koh on 10/3/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 10/4/2013)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10
LONZELL GREEN,
11
Plaintiff,
12
v.
13
TAMARA DE LA CRUZ,
14
Defendant.
15

)
)
)
)
)
)
)
)
)
)

No. C 13-3616 LHK (PR)
ORDER OF DISMISSAL

16
Plaintiff, proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983.
17
Plaintiff’s motion for leave to proceed in forma pauperis is granted in a separate order. For the
18
reasons stated below, plaintiff’s complaint is DISMISSED.
19
DISCUSSION
20
A.

Standard of Review

21
A federal court must conduct a preliminary screening in any case in which a prisoner
22
seeks redress from a governmental entity or officer or employee of a governmental entity. See
23
28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss
24
any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or
25
seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §
26
1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v.
27
Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1988).
28
Order of Dismissal
G:\PRO-SE\LHK\CR.13\Green616ftsc.wpd

1

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

2

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

3

the alleged violation was committed by a person acting under the color of state law. See West v.

4

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

5

B.

Legal Claims

6

In the complaint, plaintiff names Tamara de la Cruz, an Alameda County Superior Court

7

Clerk, as a defendant. Plaintiff alleges he had filed a state habeas petition in Superior Court and,

8

on May 29, 2013, Judge Goodman denied it. In the order, it stated that the petition was “denied

9

as s relief is barred.” [Sic.] Defendant certified the order and served it upon plaintiff. Plaintiff

10

now alleges that defendant violated his Constitutional rights by failing to correct the phrase “ass

11

relief.” Plaintiff accuses defendant of having discriminatory customs, habits, and practices.

12

In order for a complaint to state a claim arising under federal law, it must be clear from

13

the face of plaintiff's well-pleaded complaint that there is a federal question. See Easton v.

14

Crossland Mortgage Corp., 114 F.3d 979, 982 (9th Cir. 1997). The mere reference of a federal

15

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

16

statute is not a necessary element of the state law claim and no preemption exists. See id. (state

17

law claims which include incidental references to federal statute and United States Constitution

18

and seek remedies founded exclusively on state law were improperly removed to federal court).

19

Here, even though plaintiff mentions the Americans with Disabilities Act and the Eighth

20

Amendment, under these facts, plaintiff does not support his conclusory statements that

21

defendant violated either federal right.

22

Accordingly, plaintiff’s complaint is DISMISSED for failure to state a claim. Because

23

plaintiff can provide no set of facts in support of his claim that would entitle him to relief, the

24

dismissal is without leave to amend.

25

The Clerk shall terminate all pending motions and close the file.

26

IT IS SO ORDERED.

27

DATED:

10/3/13

LUCY H. KOH
United States District Judge

28
Order of Dismissal
G:\PRO-SE\LHK\CR.13\Green616ftsc.wpd

2