Haraszewski v. Brannan et al

Filing 16

ORDER; Plaintiff's Fourteenth Amendment equal protection claims are dismissed for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(b) & 1915A(b); the U.S. Marshal is directed to effect servi ce of First Amended Complaint pursuant to FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d); Defendants are ordered to reply to Plaintiff's First Amended Complaint within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a); Signed by Judge Larry Alan Burns on 11/15/10.(All non-registered users served via U.S. Mail Service)(IFP package prepared and mailed to plaintiff)(kaj)

- P C L Haraszewski v. Brannan et al

D o c . 16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 D e f e n d a n ts . 19 20 21 22 23 24 25 26 27 28 I. P ROCEDURAL HISTORY O n March 12, 2010, Hubert Dymitr Haraszewski ("Plaintiff"), a state prisoner currently inca rce rated at the Kern Valley State Prison located in Delano, California, and proceeding pro s e , submitted a civil rights Complaint pursuant to 28 U.S.C. § 1983. In addition, Plaintiff filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). The Court -1L IS A BRANNAN, et al., vs. H U B E R T DYMITR HARASZEWSKI, C D C R #AC-2622, P la in tif f , C iv il No. ORDER: (1 ) DISMISSING CLAIMS FROM F I R S T AMENDED COMPLAINT F O R FAILING TO STATE A CLAIM PURSUANT TO 2 8 U.S.C. §§ 1915(e)(2)(b) & 1 9 1 5 A (b ); AND (2 ) DIRECTING U.S. MARSHAL T O EFFECT SERVICE OF A M E N D E D COMPLAINT P U R S U A N T TO FED.R.CIV.P. 4(c)(3) & 28 U.S.C. § 1915(d) 1 0 c v 0 5 4 6 LAB (PCL)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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g ra n te d Plaintiff's Motion to Proceed IFP but simultaneously dismissed his Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(b) & 1915A(b). See Apr. 20, 2010 Order at 5 -6 . Plaintiff was granted leave to file a First Amended Complaint in order to correct the d e f ic ie n c ie s of pleading identified by the Court. Id. at 6. Plaintiff then requested several e x te n s io n s of time to file a First Amended Complaint which were granted by the Court. On O ctob er 6, 2010, Plaintiff filed his First Amended Complaint ("FAC"). II. S UA SPONTE SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) N o tw ith s ta n d in g payment of any filing fee or portion thereof, the Prison Litigation R ef o r m Act ("PLRA") requires courts to review complaints filed by prisoners against officers o r employees of governmental entities and dismiss those or any portion of those found frivolous, m a lic io u s , failing to state a claim upon which relief may be granted, or seeking monetary relief f ro m a defendant immune from such relief. 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 .3 d 443, 446 (9th Cir. 2000) (§ 1915A). P rio r to the PLRA, the former 28 U.S.C. § 1915(d) permitted sua sponte dismissal of only frivo lo u s and malicious claims. Lopez, 203 F.3d at 1126, 1130. However 28 U.S.C.

§ § 1915(e)(2) and 1915A now mandate that the court reviewing a prisoner's suit make and rule o n its own motion to dismiss before directing that the complaint be served by the U.S. Marshal p u rs u a n t to FED. R. CIV. P. 4(c)(2). Id. at 1127 ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."); Barren v. H a r r in g to n , 152 F.3d 1193, 1194 (9th Cir. 1998). The district court should grant leave to a m e n d , however, unless it determines that "the pleading could not possibly be cured by the a lle g a tio n of other facts" and if it appears "at all possible that the plaintiff can correct the d e f ec t." Lopez, 203 F.3d at 1130-31 (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1 9 9 5 ); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1990)). "[W]hen determining whether a complaint states a claim, a court must accept as true all a lle g a tio n s of material fact and must construe those facts in the light most favorable to the -2-

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p l ain tif f ." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) " p a ra lle ls the language of Federal Rule of Civil Procedure 12(b)(6)"). However, while liberal c o n stru c tio n is "particularly important in civil rights cases," Ferdik v. Bonzelet, 963 F.2d 1258, 1 2 6 1 (9th Cir. 1992), the court may nevertheless not "supply essential elements of the claim that w e re not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9 th Cir. 1982). Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person a c tin g under color of state law committed the conduct at issue, and (2) that the conduct deprived th e claimant of some right, privilege, or immunity protected by the Constitution or laws of the U n ite d States. See 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on o th e r grounds by Daniels v. Williams, 474 U.S. 327, 328 (1986); Haygood v. Younger, 769 F.2d 1 3 5 0 , 1354 (9th Cir. 1985) (en banc). P la in tif f claims that after he received his "life sentence" he was segregated in the jail but c laim s that no one else in the jail serving a life sentence was segregated and thus, his right to e q u a l protection under the laws was violated. See FAC at 6. The "Equal Protection Clause of th e Fourteenth Amendment commands that no State shall `deny to any person within its ju ris d ic tio n the equal protection of the laws,' which is essentially a direction that all persons s im ila rly situated should be treated alike." City of Cleburne v. Cleburne Living Center, Inc. 473 U .S . 432, 439 (1985). In order to state a claim under § 1983 alleging violations of the equal p ro tec tio n clause of the Fourteenth Amendment, Plaintiff must allege facts which demonstrate that he is a member of a protected class. See Harris v. McRae, 448 U.S. 297, 323 (1980) (in d ig e n ts); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985) ( lis tin g suspect classes). In this matter, Plaintiff has neither sufficiently plead that he is a m e m b e r of a suspect class nor has he plead adequate facts to demonstrate that Defendants acted w ith an intent or purpose to discriminate against him based upon his membership in a protected c la s s . See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1 1 5 4 (1999). /// -3-

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T h u s , the Court finds that Plaintiff's allegations are insufficient to prove invidious discrim inatory intent. Village of Arlington Heights v. Metropolitan Housing Development Corp., 4 2 9 U.S. 252, 265 (1977). Accordingly, Plaintiff's Fourteenth Amendment equal protection c la im s are dismissed for failing to state a claim upon which § 1983 relief can be granted. H o w ev er, as to the remaining claims in Plaintiff's First Amended Complaint, the Court f in d s that Plaintiff's claims are now sufficiently pleaded to survive the sua sponte screening re q u ire d by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Therefore, Plaintiff is entitled to U.S. M a rs h a l service on his behalf. See Lopez, 203 F.3d at 1126-27; 28 U.S.C. § 1915(d) ("The o ff icers of the court shall issue and serve all process, and perform all duties in [IFP] cases."); F ED.R .C IV.P . 4(c)(3) ("[T]he court may order that service be made by a United States marshal o r 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 p ro c e d u re 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. 2 0 0 7 ). I I I. C ONCLUSION AND ORDER Good cause appearing therefor, IT IS HEREBY ORDERED that: 1. Plaintiff's Fourteenth Amendment equal protection claims are dismissed for failing

to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(b) & 1 9 1 5 A (b). I T IS FURTHER ORDERED that: 2. T h e Clerk shall issue a summons as to Plaintiff's First Amended Complaint [Doc.

N o . 15] upon Defendants and shall forward it to Plaintiff along with a blank U.S. Marshal Form 2 8 5 for each of these Defendants. In addition, the Clerk shall provide Plaintiff with a certified c o p y of this Order, the Court's April 20, 2010 Order granting Plaintiff leave to proceed IFP [D o c . No. 4], and certified copies of his First Amended Complaint and the summons for p u rp o s e s of serving each Defendant. Upon receipt of this "IFP Package," Plaintiff is directed -4-

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to complete the Form 285s as completely and accurately as possible, and to return them to the U n ite d States Marshal according to the instructions provided by the Clerk in the letter a c c o m p a n y i n g his IFP package. Thereafter, the U.S. Marshal shall serve a copy of the First A m en d ed Complaint and summons upon each Defendant as directed by Plaintiff on each Form 2 8 5 . All costs of service shall be advanced by the United States. See 28 U.S.C. § 1915(d); F ED.R .C IV.P . 4(c)(3). 3. D efe n d an ts are thereafter ORDERED to reply to Plaintiff's First Amended

C o m p lain t within the time provided by the applicable provisions of Federal Rule of Civil P ro c e d u re 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 o th e r correctional facility under section 1983," once the Court has conducted its sua sponte scre en in g pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and thus, has made a preliminary d e ter m in a tio n based on the face on the pleading alone that Plaintiff has a "reasonable o p p o rtu n ity to prevail on the merits," Defendants are required to respond). 4. P la in tiff shall serve upon Defendants or, if appearance has been entered by

c o u n se l , upon Defendants' counsel, a copy of every further pleading or other document s u b m itte d for consideration of the Court. Plaintiff shall include with the original paper to be file d with the Clerk of the Court a certificate stating the manner in which a true and correct copy o f any document was served on Defendants, or counsel for Defendants, and the date of service. A n y paper received by the Court which has not been filed with the Clerk or which fails to in c lu d e a Certificate of Service will be disregarded. I T IS SO ORDERED.

D A T E D : November 15, 2010

H ONORABLE LARRY ALAN BURNS U n ite d States District Judge

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