Lubisch v. Lee
Filing
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ORDER OF DISMISSAL WITH LEAVE TO AMEND. The complaint is DISMISSED with leave to amend. Within twenty-eight (28) days of the date this order is filed, Plaintiff shall file an amended complaint. order and the words "AMENDED COMPLAINT" on the first page and write in the case number for this action, Case No. C 13-05575 EJD (PR). If using the court form complaint, Plaintiff must answer all the questions on the form in order for the action to proceed. Failure to respond in accordance wit h this order by filing an amended complaint in the time provided will result in the dismissal of this action without prejudice and without further notice to Plaintiff. The amended complaint must include the caption and civil case number used in this. Signed by Judge Edward J. Davila on 4/9/2014. (Attachments: # 1 FORM HABEAS COMPLAINT)(ecg, COURT STAFF) (Filed on 4/10/2014)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California
United States District Court
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GREG LUBISCH,
Plaintiff,
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v.
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CYNTHIA MING-MEI LEE, et al.,
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Defendants.
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No. C 13-05575 EJD (PR)
ORDER OF DISMISSAL WITH
LEAVE TO AMEND
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On December 29, 2013, Plaintiff, who appears to be a pretrial detainee in the
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County of San Francisco, filed a civil rights action under 42 U.S.C. § 1983, by filing
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a two page document consisting of three paragraphs. He claims that “[s]ince 2001...
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Defendants conspired to deprive plaintiff by [constitutional] violations” which
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resulted in physical injury, lost wages and income, physical and mental pain, and
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$50,000 in medical expenses. (Docket No. 1 at 1-2.) Plaintiff also claims that he
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was denied equal access to “justice” and that he has been falsely imprisoned. (Id. at
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2.)
DISCUSSION
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A.
Standard of Review
A federal court must conduct a preliminary screening in any case in which a
Order of Dismissal with Leave to Amend
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prisoner seeks redress from a governmental entity or officer or employee of a
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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must
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identify any cognizable claims and dismiss any claims that are frivolous, malicious,
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fail to state a claim upon which relief may be granted or seek monetary relief from a
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defendant who is immune from such relief. See id. § 1915A(b)(1),(2). Pro se
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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).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential
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was violated, and (2) that the alleged violation was committed by a person acting
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For the Northern District of California
elements: (1) that a right secured by the Constitution or laws of the United States
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United States District Court
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under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
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B.
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Plaintiff’s Claims
Plaintiff’s complaint consists of a two page document containing three
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paragraphs. (Docket No. 1.) He claims that “[s]ince 2001... Defendants conspired
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to deprive plaintiff by [constitutional] violations” which resulted in physical injury,
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lost wages and income, physical and mental pain, and $50,000 in medical expenses.
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(Docket No. 1 at 1-2.) Plaintiff also claims that he was denied equal access to
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“justice” and that he has been falsely imprisoned. (Id. at 2.) Plaintiff seeks damages
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for his injuries.
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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain
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statement of the claim showing that the pleader is entitled to relief.” “Specific facts
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are not necessary; the statement need only ‘“give the defendant fair notice of what
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the . . . . claim is and the grounds upon which it rests.”’” Erickson v. Pardus, 551
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U.S. 89, 93 (2007) (citations omitted). “Factual allegations must be enough to raise
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a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550
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U.S. 544, 553-56 (2007) (citations omitted). To state a claim that is plausible on its
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face, a plaintiff must allege facts that “allow[] the court to draw the reasonable
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inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
Order of Dismissal with Leave to Amend
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556 U.S. 662, 678 (2009) (finding under Twombly and Rule 8 of the Federal Rules
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of Civil Procedure, that complainant-detainee in a Bivens action failed to plead
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sufficient facts “plausibly showing” that top federal officials “purposely adopted a
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policy of classifying post-September-11 detainees as ‘of high interest’ because of
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their race, religion, or national origin” over more likely and non-discriminatory
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explanations).
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From these decisions, the following “two principles” arise: “First to be
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entitled to the presumption of truth, allegations in a complaint or counterclaim may
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not simply recite the elements of a cause of action but must contain sufficient
allegations of underlying facts to give fair notice and to enable the opposing party to
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For the Northern District of California
United States District Court
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defend itself effectively. Second, the factual allegations that are taken as true must
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plausibly suggest an entitlement to relief, such that it is not unfair to require the
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opposing party to be subjected to the expense of discovery and continued litigation.”
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Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011); see, e.g., AE v. County of
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Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (applying Starr standard to pleading policy
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or custom for claims against local government entities); see also McHenry v. Renne,
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84 F.3d 1172, 1177-78 (9th Cir. 1996) (a complaint must make clear "who is being
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sued, for what relief, and on what theory, with enough detail to guide discovery").
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Plaintiff’s complaint fails to meet the minimum pleading requirements as it
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fails to give defendants fair notice of the claims against them and the grounds upon
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which they rest. Erickson, 551 U.S. at 93. He lists generally that the action arises
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under several Constitutional amendments, but fails to provide the underlying facts to
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support is claim, e.g., what specific federal rights were violated, when the alleged
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violations occurred, and how each named defendant was responsible for the
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violations. Plaintiff shall be granted leave to amend to attempt to cure these
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deficiencies.
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In amending his complaint, Plaintiff is advised that liability may be imposed
on an individual defendant under § 1983 only if Plaintiff can show that the
Order of Dismissal with Leave to Amend
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defendant proximately caused the deprivation of a federally protected right. See
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Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664
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F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a constitutional right
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within the meaning of section 1983 if he does an affirmative act, participates in
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another’s affirmative act or omits to perform an act which he is legally required to
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do, that causes the deprivation of which the plaintiff complains. See Leer, 844 F.2d
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at 633.
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To the extent that Plaintiff is attempting to challenge the lawfulness of his
confinement for a criminal prosecution when he claims that he was “falsely
imprisoned,” (Compl. at 2), his claim for damages may be barred. A claim for
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For the Northern District of California
United States District Court
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damages for an allegedly unconstitutional conviction or imprisonment, or for other
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harm caused by actions whose unlawfulness would render a conviction or sentence
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invalid is not cognizable under § 1983. Heck v. Humphrey, 512 U.S. 477, 487
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(1994).1 A plaintiff must prove that the conviction or sentence has been reversed on
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direct appeal, expunged by executive order, declared invalid by a state tribunal
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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. Id. at 486-87. Accordingly, in filing an
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amended complaint seeking damages for an unlawful conviction, Plaintiff must
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identify the conviction which he is challenging and show that the challenged
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conviction and sentence have been invalidated.
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CONCLUSION
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For the foregoing reasons, the Court orders as follows:
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The complaint is DISMISSED with leave to amend. Within twenty-eight
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(28) days of the date this order is filed, Plaintiff shall file an amended complaint.
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The amended complaint must include the caption and civil case number used in this
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Heck applies equally to claims brought under §§ 1983, 1985 and 1986.
McQuillion v. Schwarzenegger, 369 F.3d 1091, 1098, n. 4 (9th Cir. 2004).
Order of Dismissal with Leave to Amend
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order and the words “AMENDED COMPLAINT” on the first page and write in the
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case number for this action, Case No. C 13-05575 EJD (PR). If using the court form
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complaint, Plaintiff must answer all the questions on the form in order for the action
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to proceed.
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Failure to respond in accordance with this order by filing an amended
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complaint in the time provided will result in the dismissal of this action without
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prejudice and without further notice to Plaintiff.
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The Clerk shall include two copies of the court’s complaint with a copy of
this order to Plaintiff.
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For the Northern District of California
United States District Court
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DATED:
4/9/2014
EDWARD J. DAVILA
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
GREG LUBISCH,
Case Number: CV13-05575 EJD
Plaintiff,
CERTIFICATE OF SERVICE
v.
CYNTHIA MING-MEI LEE, 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.
4/10/2014
That on
, 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.
Greg Lubisch J-12674079
Hall of Justice
850 Bryant Street, 7th Floor
San Francisco, CA 94103
Dated:
4/10/2014
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk
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