Lubisch v. Lee

Filing 12

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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 For the Northern District of California United States District Court 10 GREG LUBISCH, Plaintiff, 12 v. 13 14 CYNTHIA MING-MEI LEE, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) ) No. C 13-05575 EJD (PR) ORDER OF DISMISSAL WITH LEAVE TO AMEND 17 18 On December 29, 2013, Plaintiff, who appears to be a pretrial detainee in the 19 County of San Francisco, filed a civil rights action under 42 U.S.C. § 1983, by filing 20 a two page document consisting of three paragraphs. He claims that “[s]ince 2001... 21 Defendants conspired to deprive plaintiff by [constitutional] violations” which 22 resulted in physical injury, lost wages and income, physical and mental pain, and 23 $50,000 in medical expenses. (Docket No. 1 at 1-2.) Plaintiff also claims that he 24 was denied equal access to “justice” and that he has been falsely imprisoned. (Id. at 25 2.) DISCUSSION 26 27 28 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 P:\PRO-SE\EJD\CR.13\05575Lubisch_dwlta.wpd 1 prisoner seeks redress from a governmental entity or officer or employee of a 2 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must 3 identify any cognizable claims and dismiss any claims that are frivolous, malicious, 4 fail to state a claim upon which relief may be granted or seek monetary relief from a 5 defendant who is immune from such relief. See id. § 1915A(b)(1),(2). Pro se 6 pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police 7 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 8 was violated, and (2) that the alleged violation was committed by a person acting 11 For the Northern District of California elements: (1) that a right secured by the Constitution or laws of the United States 10 United States District Court 9 under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 12 B. 13 Plaintiff’s Claims Plaintiff’s complaint consists of a two page document containing three 14 paragraphs. (Docket No. 1.) He claims that “[s]ince 2001... Defendants conspired 15 to deprive plaintiff by [constitutional] violations” which resulted in physical injury, 16 lost wages and income, physical and mental pain, and $50,000 in medical expenses. 17 (Docket No. 1 at 1-2.) Plaintiff also claims that he was denied equal access to 18 “justice” and that he has been falsely imprisoned. (Id. at 2.) Plaintiff seeks damages 19 for his injuries. 20 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain 21 statement of the claim showing that the pleader is entitled to relief.” “Specific facts 22 are not necessary; the statement need only ‘“give the defendant fair notice of what 23 the . . . . claim is and the grounds upon which it rests.”’” Erickson v. Pardus, 551 24 U.S. 89, 93 (2007) (citations omitted). “Factual allegations must be enough to raise 25 a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 26 U.S. 544, 553-56 (2007) (citations omitted). To state a claim that is plausible on its 27 face, a plaintiff must allege facts that “allow[] the court to draw the reasonable 28 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, Order of Dismissal with Leave to Amend P:\PRO-SE\EJD\CR.13\05575Lubisch_dwlta.wpd 2 1 556 U.S. 662, 678 (2009) (finding under Twombly and Rule 8 of the Federal Rules 2 of Civil Procedure, that complainant-detainee in a Bivens action failed to plead 3 sufficient facts “plausibly showing” that top federal officials “purposely adopted a 4 policy of classifying post-September-11 detainees as ‘of high interest’ because of 5 their race, religion, or national origin” over more likely and non-discriminatory 6 explanations). 7 From these decisions, the following “two principles” arise: “First to be 8 entitled to the presumption of truth, allegations in a complaint or counterclaim may 9 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 11 For the Northern District of California United States District Court 10 defend itself effectively. Second, the factual allegations that are taken as true must 12 plausibly suggest an entitlement to relief, such that it is not unfair to require the 13 opposing party to be subjected to the expense of discovery and continued litigation.” 14 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011); see, e.g., AE v. County of 15 Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (applying Starr standard to pleading policy 16 or custom for claims against local government entities); see also McHenry v. Renne, 17 84 F.3d 1172, 1177-78 (9th Cir. 1996) (a complaint must make clear "who is being 18 sued, for what relief, and on what theory, with enough detail to guide discovery"). 19 Plaintiff’s complaint fails to meet the minimum pleading requirements as it 20 fails to give defendants fair notice of the claims against them and the grounds upon 21 which they rest. Erickson, 551 U.S. at 93. He lists generally that the action arises 22 under several Constitutional amendments, but fails to provide the underlying facts to 23 support is claim, e.g., what specific federal rights were violated, when the alleged 24 violations occurred, and how each named defendant was responsible for the 25 violations. Plaintiff shall be granted leave to amend to attempt to cure these 26 deficiencies. 27 28 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 P:\PRO-SE\EJD\CR.13\05575Lubisch_dwlta.wpd 3 1 defendant proximately caused the deprivation of a federally protected right. See 2 Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 3 F.2d 1121, 1125 (9th Cir. 1981). A person deprives another of a constitutional right 4 within the meaning of section 1983 if he does an affirmative act, participates in 5 another’s affirmative act or omits to perform an act which he is legally required to 6 do, that causes the deprivation of which the plaintiff complains. See Leer, 844 F.2d 7 at 633. 8 9 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 11 For the Northern District of California United States District Court 10 damages for an allegedly unconstitutional conviction or imprisonment, or for other 12 harm caused by actions whose unlawfulness would render a conviction or sentence 13 invalid is not cognizable under § 1983. Heck v. Humphrey, 512 U.S. 477, 487 14 (1994).1 A plaintiff must prove that the conviction or sentence has been reversed on 15 direct appeal, expunged by executive order, declared invalid by a state tribunal 16 authorized to make such determination, or called into question by a federal court’s 17 issuance of a writ of habeas corpus. Id. at 486-87. Accordingly, in filing an 18 amended complaint seeking damages for an unlawful conviction, Plaintiff must 19 identify the conviction which he is challenging and show that the challenged 20 conviction and sentence have been invalidated. 21 CONCLUSION 22 23 For the foregoing reasons, the Court orders as follows: 24 The complaint is DISMISSED with leave to amend. Within twenty-eight 25 (28) days of the date this order is filed, Plaintiff shall file an amended complaint. 26 The amended complaint must include the caption and civil case number used in this 27 1 28 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 P:\PRO-SE\EJD\CR.13\05575Lubisch_dwlta.wpd 4 1 order and the words “AMENDED COMPLAINT” on the first page and write in the 2 case number for this action, Case No. C 13-05575 EJD (PR). If using the court form 3 complaint, Plaintiff must answer all the questions on the form in order for the action 4 to proceed. 5 Failure to respond in accordance with this order by filing an amended 6 complaint in the time provided will result in the dismissal of this action without 7 prejudice and without further notice to Plaintiff. 8 9 The Clerk shall include two copies of the court’s complaint with a copy of this order to Plaintiff. 11 For the Northern District of California United States District Court 10 DATED: 4/9/2014 EDWARD J. DAVILA United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order of Dismissal with Leave to Amend P:\PRO-SE\EJD\CR.13\05575Lubisch_dwlta.wpd 5 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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