Young v. Smalls et al

Filing 32

ORDER: (1) Dismissing claims and Defendants from Fourth Amended Complaint for failing to state a claim pursuant to 28 U.S.C. 1915(e)(20&1915A(b); and (2) Directing U.S. Marshal to effect service of Fourth Amended Complaint pursuant to Fed.R.Civ.P.4(c )(3) & 28 U.S.C.1915(d). It is hereby Ordered that: Defendants Lopez, Madden, Sutton, Criman, Bellinger, Badilla, Drake, Mudra,Shields, John Does and Magill are Dismissed from this action. Plaintiff's Fourteenth Amendment restitution claims and personal property claims are Dismissed without leave to amend for all the reasons set forth in the Court's July 19, 2010 Order. Plaintiff's claims for monetary damages against the CDCR and Calipatria State Prison are Dismissed without leav e to amend pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) & (iii). Any claims for injunctive relief against the CDCR or Calipatria State Prison remain in the action. Signed by Judge Dana M. Sabraw on 9/30/10.(All non-registered users served via U.S. Mail Service)(pro per package mailed)(lao)

-JMA Young v. Smalls et al

Doc. 32

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

HOWARD YOUNG, CDCR #F-44590, Plaintiff,

Civil No.

09-2545 DMS (JMA)

ORDER: (1) DISMISSING CLAIMS AND DEFENDANTS FROM FOURTH AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(20 & 1915A(b); and (2) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF FOURTH AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d)

vs.

LARRY SMALLS, W.J. PRICE; G.J. JANDA; M. TAPIA; T. OCHOA; D. MIDDLETON; RIGNEY; CDCR, Defendants.

I. PROCEDURAL HISTORY On November 10, 2009, Howard Young ("Plaintiff"), a state prisoner currently incarcerated at Kern Valley State Prison located in Delano, California, and proceeding in pro se,
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filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. The Court issued an Order on January 19, 2010 dismissing Plaintiff's Complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). Plaintiff was notified of the deficiencies of pleading and provided an opportunity to file a First Amended Complaint. However, on that same day, Plaintiff filed his First Amended Complaint [Doc. No. 12]. Because Plaintiff could not have received the Court's Order in time to correct the problems the Court identified in his previous pleading, the Court dismissed Plaintiff's First Amended Complaint and gave him leave to file a Second Amended Complaint. On April 5, 2010, Plaintiff filed his Second Amended Complaint [Doc. No. 21]. The Court, once again, dismissed Plaintiff's Second Amended Complaint and gave him an opportunity to file a Third Amended Complaint. On June 24, 2010, Plaintiff filed his Third Amended Complaint. Plaintiff's Third Amended Complaint was also dismissed for failing to state a claim. See July 19, 2010 Order at 9-10. While Plaintiff was given the opportunity to file a Fourth Amended Complaint, the Court dismissed Plaintiff's claims relating to his restitution account and his personal property claims without leave to amend. Id. at 4-5, 9. Plaintiff was also cautioned that any Defendants not named and all claims not re-alleged in the Amended Complaint would be deemed to have been waived. Id. at 9 (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). On September 22, 2010, Plaintiff filed his Fourth Amended Complaint ("FAC"). Plaintiff no longer names Defendants Lopez, Madden, Sutton, Criman, Bellinger, Badilla, Drake, Mudra, Shields, John Does and Magill in his FAC. See FAC at 1-3. Thus, Defendants Lopez, Madden, Sutton, Criman, Bellinger, Badilla, Drake, Mudra, Shields, John Does and Magill are DISMISSED from this action. See King, 814 F.2d at 567. II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) As the Court stated in its previous Orders, the Prison Litigation Reform Act ("PLRA") obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole,
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probation, pretrial release, or diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 1915A). "[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). In addition, the Court's duty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a pro se civil rights complaint, the court may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id. A. 42 U.S.C. § 1983 Liability

Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S. Ct. 2117, 2122 (2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). B. Restitution claims and personal property claims

In Plaintiff's previous pleadings he alleged that his constitutional rights were violated by the method by which prison officials were withdrawing funds from his restitution account. In addition, Plaintiff alleged that on a number of occasions his personal property was taken by
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prison officials without authorization. The Court made clear in its previous Order that these claims were dismissed without leave to amend. See July 19, 2010 Order at 5, 9. While Plaintiff has ignored the Court's previous Order and re-alleged these claims, they remain dismissed for all the reasons set forth in the July 19, 2010 Order. C. Eleventh Amendment

Moreover, to the extent Plaintiff asserts claims for monetary damages against the CDCR, and Calipatria State Prison, the Court finds that these claims must be dismissed. The State of California and the CDCR, an agency of the State of California, are not "persons" subject to suit under § 1983 and are instead, entitled to absolute immunity from monetary damages actions under the Eleventh Amendment. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 53-54 (1996); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106 (1984); see also Hale v. State of Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993) (holding that a state department of corrections is not a "person" within the meaning of § 1983). Therefore, Plaintiff's claims for monetary damages against the CDCR and Calipatria State Prison are hereby dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) & (iii). D. Remaining claims

As to the remaining claims, the Court finds that Plaintiff's Fourth Amended Complaint is sufficiently pleaded to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Therefore, Plaintiff is entitled to U.S. Marshal service on his behalf. See Lopez, 203 F.3d at 1126-27; 28 U.S.C. § 1915(d) ("The officers of the court shall issue and serve all process, and perform all duties in [IFP] cases."); FED.R.CIV.P. 4(c)(3) ("[T]he court may order that service be made by a United States marshal or deputy marshal ... if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915."). Plaintiff is cautioned, however, that "the sua sponte screening and dismissal procedure is cumulative of, and not a substitute for, any subsequent Rule 12(b)(6) motion that [a defendant] may choose to bring." Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007). /// ///
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III. CONCLUSION AND ORDER Good cause appearing therefor, IT IS HEREBY ORDERED that: 1. Defendants Lopez, Madden, Sutton, Criman, Bellinger, Badilla, Drake, Mudra, Shields, John Does and Magill are DISMISSED from this action. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). 2. Order. 3. Plaintiff's claims for monetary damages against the CDCR and Calipatria State Prison are DISMISSED without leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) & (iii). Any claims for injunctive relief against the CDCR or Calipatria State Prison remain in the action. IT IS FURTHER ORDERED that: 4. The Clerk shall issue a summons as to Plaintiff's Fourth Amended Complaint [Doc. No. 31] upon the remaining Defendants and shall forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each of these Defendants. In addition, the Clerk shall provide Plaintiff with a certified copy of this Order, the Court's January 19, 2010 Order granting Plaintiff leave to proceed IFP [Doc. No. 11], and certified copies of his Fourth Amended Complaint and the summons for purposes of serving each Defendant. Upon receipt of this "IFP Package," Plaintiff is directed to complete the Form 285s as completely and accurately as possible, and to return them to the United States Marshal according to the instructions provided by the Clerk in the letter accompanying his IFP package. Thereafter, the U.S. Marshal shall serve a copy of the Fourth Amended Complaint and summons upon each Defendant as directed by Plaintiff on each Form 285. All costs of service shall be advanced by the United States. See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(3). /// ///
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Plaintiff's Fourteenth Amendment restitution claims and personal property claims

are DISMISSED without leave to amend for all the reasons set forth in the Court's July 19, 2010

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5.

Defendants are thereafter ORDERED to reply to Plaintiff's Fourth Amended

Complaint within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants may occasionally be permitted to "waive the right to reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility under section 1983," once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary determination based on the face on the pleading alone that Plaintiff has a "reasonable opportunity to prevail on the merits," Defendants are required to respond). 6. Plaintiff shall serve upon Defendants or, if appearance has been entered by counsel, upon Defendants' counsel, a copy of every further pleading or other document submitted for consideration of the Court. Plaintiff shall include with the original paper to be filed with the Clerk of the Court a certificate stating the manner in which a true and correct copy of any document was served on Defendants, or counsel for Defendants, and the date of service. Any paper received by the Court which has not been filed with the Clerk or which fails to include a Certificate of Service will be disregarded.

DATED: September 30, 2010

HON. DANA M. SABRAW United States District Judge

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