Nesbeth v. Obama et al
Filing
4
ORDER granting 2 Motion for Leave to Proceed in forma pauperis, denying 3 Motion to Appoint Counsel, dismissing complaint without prejudice for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(b). Plaintiff is granted forty five days leave from the date this Order is filed in which to reopen the case by filing a Amended Complaint. Signed by Judge Larry Alan Burns on 11/12/14. (All non-registered users served via U.S. Mail Service)(kas)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
12
NEZIAH IGNATIUS NESBETH,
Register #A047-575-127,
Civil No.
Plaintiff,
13
vs.
16
17
ORDER:
(1) GRANTING PLAINTIFF’S
MOTION TO PROCEED
IN FORMA PAUPERIS
(ECF Doc. No. 2);
14
15
14cv2450 LAB (WVG)
(2) DENYING PLAINTIFF’S
MOTION TO APPOINT
COUNSEL (ECF Doc. No. 3)
BARACK OBAMA, et al.,
18
AND
19
Defendants.
20
21
(3) SUA SPONTE DISMISSING
COMPLAINT FOR FAILING TO
STATE A CLAIM PURSUANT
TO 28 U.S.C. § 1915(e)(2)(B)
22
Neziah Igantius Nesbeth (“Plaintiff”), an immigration detainee at the San Diego
23
Correctional Facility in San Diego, California, has filed a civil rights complaint pursuant
24
to 42 U.S.C. § 1983 (ECF Doc. No. 1), together with a Motion to Proceed In Forma
25
Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2) and a Motion to
26
Appoint Counsel (ECF Doc. No. 3).
27
///
28
///
I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd
1
14cv2450 LAB (WVG)
1
I.
Motion to Proceed IFP
2
All parties instituting any civil action, suit or proceeding in a district court of the
3
United States, except an application for writ of habeas corpus must pay a filing fee of
4
$400.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to
5
prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28
6
U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
7
However, “[u]nlike other indigent litigants, prisoners proceeding IFP must pay the
8
full amount of filing fees in civil actions and appeals pursuant to the PLRA [Prison
9
Litigation Reform Act].” Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002). As
10
defined by the PLRA, a “prisoner” is “any person incarcerated or detained in any facility
11
who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations
12
of criminal law or the terms and conditions of parole, probation, pretrial release, or
13
diversionary program.” 28 U.S.C. § 1915(h). “[A]n alien detained by the INS pending
14
deportation is not a ‘prisoner’ within the meaning of the PLRA,” because deportation
15
proceedings are civil, rather than criminal in nature, and an alien detained pending
16
deportation has not necessarily been “accused of, convicted of, sentenced or adjudicated
17
delinquent for, a violation of criminal law.” Agyeman, 296 F.3d at 886. Thus, because
18
Plaintiff is not a “prisoner” as defined by 28 U.S.C. § 1915(h), and the filing fee
19
provisions of 28 U.S.C. § 1915(b) do not apply to him.
20
Accordingly, the Court has reviewed Plaintiff’s affidavit of assets and finds it is
21
sufficient to show that he is unable to pay the $400 filing fee or post securities required
22
to maintain a civil action. Therefore, Plaintiff’s Motion to Proceed IFP pursuant to 28
23
U.S.C. § 1915(a) (ECF Doc. No. 2) is GRANTED .
24
///
25
///
26
All parties filing civil actions on or after May 1, 2013, must pay the $350 civil
filing fee, as well as an additional administrative fee of $50. See 28 U.S.C. § 1914(a)
(Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule) (eff. May 1,
28 2013). However, the additional $50 administrative fee is waived if the plaintiff is
granted leave to proceed IFP. Id.
1
27
I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd
2
14cv2450 LAB (WVG)
1
II.
MOTION TO APPOINT COUNSEL
Plaintiff also requests appointment of counsel in this matter. See Pl.’s Mot. for
2
3
Appoint. Counsel (ECF Doc. No. 3) at 1.
The Constitution provides no right to
4
appointment of counsel in a civil case, however, unless an indigent litigant may lose his
5
physical liberty if he loses the litigation. Lassiter v. Dept. of Social Services, 452 U.S.
6
18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are granted
7
discretion to appoint counsel for indigent persons. This discretion may be exercised only
8
under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
9
1991). “A finding of exceptional circumstances requires an evaluation of both the
10
‘likelihood of success on the merits and the ability of the plaintiff to articulate his claims
11
pro se in light of the complexity of the legal issues involved.’ Neither of these issues is
12
dispositive and both must be viewed together before reaching a decision.” Id. (quoting
13
Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).
14
The Court denies Plaintiff’s request without prejudice, as neither the interests of
15
justice nor exceptional circumstances warrant appointment of counsel at this time.
16
LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.
17
III.
SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)
18
A.
Standard of Review
19
Any complaint filed by any person proceeding IFP is subject to sua sponte
20
dismissal by the Court to the extent it contains claims which are frivolous, malicious, or
21
fail to state a claim upon which relief may be granted, or if it “seeks monetary relief from
22
a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii);
23
Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the
24
provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith,
25
203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits, but
26
requires a district court to dismiss an in forma pauperis complaint that fails to state a
27
claim.”).
28
///
I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd
3
14cv2450 LAB (WVG)
1
All complaints must contain “a short and plain statement of the claim showing that
2
the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations are
3
not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by
4
mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
5
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining
6
whether a complaint states a plausible claim for relief [is] . . . a context-specific task that
7
requires the reviewing court to draw on its judicial experience and common sense.” Id.
8
The “mere possibility of misconduct” falls short of meeting this plausibility standard.
9
Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
10
“When there are well-pleaded factual allegations, a court should assume their
11
veracity, and then determine whether they plausibly give rise to an entitlement to relief.”
12
Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
13
(“[W]hen determining whether a complaint states a claim, a court must accept as true all
14
allegations of material fact and must construe those facts in the light most favorable to
15
the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that
16
§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”).
17
However, while the court “ha[s] an obligation where the petitioner is pro se,
18
particularly in civil rights cases, to construe the pleadings liberally and to afford the
19
petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.
20
2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not, in
21
so doing, “supply essential elements of claims that were not initially pled.” Ivey v. Board
22
of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
23
B.
Plaintiff’s Allegations
24
Plaintiff’s Complaint contains very few specific factual allegations. Plaintiff
25
raises allegations of constitutional violations that range from his past incarceration in the
26
California Department of Corrections and Rehabilitation (“CDCR”), his immigration
27
proceedings, his criminal proceedings, past arrests, his detainment in the El Centro
28
Detention Facility, interactions with various employees of the United States Department
I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd
4
14cv2450 LAB (WVG)
1
of Homeland Security (“DHS”) and his current detainment at the San Diego Correctional
2
Facility.
3
Plaintiff seeks damages, and invokes federal jurisdiction over his case pursuant
4
to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(a)(3). See Compl. at 1. However, because
5
some of his claims arose at the El Centro Detention Facility and the San Diego
6
Correctional Facility, which operates under contract with the Department of Homeland
7
Security’s Immigrations and Customs Enforcement division (“ICE”), and is managed by
8
CCA, a private corporation, to house ICE and U.S. Marshal Service detainees, the Court
9
liberally construes some of Plaintiff’s claims to arise under Bivens v. Six Unknown
10
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
11
Bivens established that “compensable injury to a constitutionally protected interest
12
[by federal officials alleged to have acted under color of federal law] could be vindicated
13
by a suit for damages invoking the general federal question jurisdiction of the federal
14
courts [pursuant to 28 U.S.C. § 1331].” Butz v. Economou, 438 U.S. 478, 486 (1978);
15
Western Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000)
16
(under Bivens, “federal courts have the inherent authority to award damages against
17
federal officials to compensate plaintiffs for violations of their constitutional rights.”).
18
To state a claim under Bivens, Plaintiff must allege that a person acting under
19
color of federal law deprived him of his constitutional rights. See Serra v. Lappin, 600
20
F.3d 1191, 1200 (9th Cir. 2010). Thus, the Ninth Circuit considers “[a]ctions under
21
§ 1983 and those under Bivens [as] identical save for the replacement of a state actor
22
under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409
23
(9th Cir. 1991); Hartman v. Moore, 547 U.S. 250, 254, 255 n.2 (2006) (a suit brought
24
pursuant to Bivens is the “federal analogue” to § 1983).
25
///
26
///
27
///
28
///
I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd
5
14cv2450 LAB (WVG)
1
C.
Department of Homeland Security
2
As a preliminary matter, the Court notes Plaintiff has included the “U.S.
3
DHS/ICE” as a Defendant in the caption of his Complaint (ECF Doc. No. 1 at 1). A
4
Bivens action may only be brought against the responsible official alleged to have acted
5
under color of federal law in his or her individual capacity. Daly-Murphy v. Winston,
6
837 F.2d 348, 355 (9th Cir.1988). Bivens does not authorize a suit against the
7
government or its agencies for monetary relief. FDIC v. Meyer, 510 U.S. 471, 486
8
(1994). Accordingly, to the extent Plaintiff intends to bring a claim against the DHS or
9
ICE, it must be dismissed pursuant to 28 U.S.C. § 1915(e)(2). Lopez, 203 F.3d at 1127.
10
D.
Respondeat Superior
11
Second, the Court finds that to the extent Plaintiff seeks to hold a number of
12
Defendants liable in their supervisory capacity including, the President of the United
13
States, the Governor of California, the Attorney General for the United States, among
14
others, his Complaint fails to “contain sufficient factual matter, accepted as true, to ‘state
15
a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
16
550 U.S. at 570).
17
“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff
18
must plead that each government-official defendant, through the official’s own
19
individual actions, has violated the Constitution.” Id. at 676; see also Jones v.
20
Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir.
21
1984) (even pro se plaintiff must “allege with at least me degree of particularity overt
22
acts which defendants engaged in” in order to state a claim). Thus, Plaintiff must include
23
in his pleading sufficient “factual content that allows the court to draw the reasonable
24
inference that the defendant is liable for the misconduct alleged,” Iqbal, 556 U.S. at 678,
25
and describe personal acts by each individual defendant which show a direct causal
26
connection to a violation of specific constitutional rights. Taylor v. List, 880 F.2d 1040,
27
1045 (9th Cir. 1989).
28
///
I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd
6
14cv2450 LAB (WVG)
1
As currently pleaded, Plaintiff’s Complaint fails to include any factual content to
2
suggest that any of these Defendants personally participated in any unconstitutional
3
violation. Therefore, he has failed to state a claim upon which relief can be granted as
4
to any of these Defendants. See 28 U.S.C. § 1915(e)(2).
5
E.
Access to Courts Claims
6
Plaintiff alleges that the immigration detention facilities “fail to allow prisoners
7
a reasonable amount of time” in the law library and as a result, he has “suffered
8
‘detriment.’” (Compl. at 4.)
9
Prisoners “have a constitutional right to petition the government for redress of
10
their grievances, which includes a reasonable right of access to the courts.” O’Keefe v.
11
Van Boening, 82 F.3d 322, 325 (9th Cir. 1996); accord Bradley v. Hall, 64 F.3d 1276,
12
1279 (9th Cir. 1995). In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court held
13
that “the fundamental constitutional right of access to the courts requires prison
14
authorities to assist inmates in the preparation and filing of meaningful legal papers by
15
providing prisoners with adequate law libraries or adequate assistance from persons who
16
are trained in the law.” Id. at 828. To establish a violation of the right to access to the
17
courts, however, a prisoner must allege facts sufficient to show that: (1) a non-frivolous
18
legal attack on his conviction, sentence, or conditions of confinement has been frustrated
19
or impeded, and (2) he has suffered an actual injury as a result. Lewis v. Casey, 518 U.S.
20
343, 353-55 (1996). An “actual injury” is defined as “actual prejudice with respect to
21
contemplated or existing litigation, such as the inability to meet a filing deadline or to
22
present a claim.” Id. at 348; see also Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir.
23
1994); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989); Keenan v. Hall, 83 F.3d
24
1083, 1093 (9th Cir. 1996).
25
Here, Plaintiff fails to allege any specific action on the part the part of employees
26
of the detention facilities which precluded his pursuit of a non-frivolous direct or
27
collateral attack upon either his criminal conviction or sentence or the conditions of his
28
current confinement. See Lewis, 518 U.S. at 355 (right to access to the courts protects
I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd
7
14cv2450 LAB (WVG)
1
only an inmate’s need and ability to “attack [his] sentence[], directly or collaterally, and
2
. . . to challenge the conditions of [his] confinement.”). In addition, Plaintiff must also,
3
but has failed to, describe the non-frivolous nature of the “underlying cause of action,
4
whether anticipated or lost.” Christopher v. Harbury, 536 U.S. 403, 415 (2002).
5
In short, because Plaintiff has failed to allege that “a complaint he prepared was
6
dismissed,” or that he was “so stymied” that “he was unable to even file a complaint,”
7
direct appeal, or petition for writ of habeas corpus that was not “frivolous,” his access
8
to courts claims fail. Lewis, 518 U.S. at 351; Christopher, 536 U.S. at 416 (“like any
9
other element of an access claim[,] . . . the predicate claim [must] be described well
10
enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’ nature of the
11
underlying claim is more than hope.”).
12
Finally, Plaintiff’s complaints related to the general deficiencies of the law library
13
also fail to state a claim. Law libraries and legal assistance programs are only the means
14
of ensuring access to the courts. Lewis, 518 U.S. at 351. Because inmates do not have
15
“an abstract, freestanding right to a law library or legal assistance, an inmate cannot
16
establish relevant actual injury by establishing that his prison’s law library or legal
17
assistance program is subpar in some theoretical sense.” Id.; Blaisdell v. Frappiea, 729
18
F.3d 1237, 1244 (9th Cir. 2013).
19
F.
Defense Counsel and Heck Bar
20
Plaintiff seeks monetary damages against attorneys appointed to represent him in
21
his immigration and criminal proceedings. However, a person “acts under color of state
22
law [for purposes of § 1983] only when exercising power ‘possessed by virtue of state
23
law and made possible only because the wrongdoer is clothed with the authority of state
24
law.’” Polk County v. Dodson, 454 U.S. 312, 317-18 (1981) (quoting United States v.
25
Classic, 313 U.S. 299, 326 (1941)). Attorneys appointed to represent a criminal
26
defendant during trial, do not generally act under color of state law because representing
27
a client “is essentially a private function ... for which state office and authority are not
28
needed.” Polk County, 454 U.S. at 319; United States v. De Gross, 960 F.2d 1433, 1442
I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd
8
14cv2450 LAB (WVG)
1
n.12 (9th Cir. 1992). Thus, when publicly appointed counsel are performing as
2
advocates, i.e., meeting with clients, investigating possible defenses, presenting evidence
3
at trial and arguing to the jury, they do not act under color of state law for section 1983
4
purposes. See Georgia v. McCollum, 505 U.S. 42, 53 (1992); Polk County, 454 U.S. at
5
320-25; Miranda v. Clark County, 319 F.3d 465, 468 (9th Cir. 2003) (en banc) (finding
6
that public defender was not a state actor subject to suit under § 1983 because, so long
7
as he performs a traditional role of an attorney for a client, “his function,” no matter how
8
ineffective, is “to represent his client, not the interests of the state or county.”).
9
Accordingly, Plaintiff’s claims against his defense counsel must be dismissed for
10
failing to state a claim upon which section 1983 relief may be granted. See 28 U.S.C.
11
§ 1915(e)(2)(B)(ii).
12
Moreover, to the extent Plaintiff seeks damages under 42 U.S.C. § 1983 based on
13
the alleged ineffectiveness assistance of his trial counsel, his claim amounts to an attack
14
on the validity of his underlying criminal proceedings, and as such, is not cognizable
15
under 42 U.S.C. § 1983 unless and until he can show that conviction has already been
16
invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Ramirez v. Galaza, 334
17
F.3d 850, 855-56 (9th Cir. 2003) (“Absent such a showing, ‘[e]ven a prisoner who has
18
fully exhausted available state remedies has no cause of action under § 1983....’”)
19
(quoting Heck, 512 U.S. at 489), cert. denied, 124 S. Ct. 2388 (2004). Heck holds that
20
“in order to recover damages for allegedly unconstitutional conviction or imprisonment,
21
or for other harm caused by actions whose unlawfulness would render a conviction or
22
sentence invalid, a section 1983 plaintiff must prove that the conviction or sentence has
23
been reversed on direct appeal, expunged by executive order, declared invalid by a state
24
tribunal authorized to make such determination, or called into question by a federal
25
court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-87. A claim
26
challenging the legality of a conviction or sentence that has not been so invalidated is not
27
cognizable under § 1983. Id. at 487; Edwards v. Balisok, 520 U.S. 641, 643 (1997).
28
///
I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd
9
14cv2450 LAB (WVG)
1
In Heck, the Supreme Court held that:
when a state prisoner seeks damages in a section 1983 suit, the
district court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his
conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated. But if the
district court determines that the plaintiff’s action, even if
successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the action
should be allowed to proceed.
2
3
4
5
6
7
8
Heck, 512 U.S. at 487 (emphasis added). An action that is barred by Heck should be
9
dismissed for failure to state a claim without prejudice to Plaintiff’s right to file a new
10
action if he succeeds in invalidating his conviction. Edwards, 520 U.S. at 649.
11
Here, Plaintiff’s ineffective assistance of counsel claims “necessarily imply the
12
invalidity” of his criminal proceedings and continuing incarceration. Heck, 512 U.S. at
13
487. Were Plaintiff to succeed in showing that his defense counsel rendered ineffective
14
assistance of counsel, an award of damages would “necessarily imply the invalidity” of
15
his conviction. Id.; see also Strickland v. Washington, 466 U.S. 668, 688 (1984) (to
16
succeed on ineffective assistance claim petitioner must show that counsel’s performance
17
fell below objective standard of reasonableness and that but for counsel’s errors the
18
result of the trial would have been different); Lozada v. Deeds, 964 F.2d 956, 958-59
19
(9th Cir. 1992) (remedy for ineffective assistance of counsel is a conditional writ
20
granting petitioner’s release unless state retries him or allows him to pursue an appeal
21
with the assistance of counsel within a reasonable time). Thus, because Plaintiff seeks
22
damages for an allegedly unconstitutional criminal proceedings in a criminal case, and
23
because he has not alleged that his conviction has already been invalidated, a section
24
1983 claim for damages has not yet accrued. See Heck, 512 U.S. at 489-90.
25
G.
Prosecutorial Defendants
26
In addition, the Court must dismiss Plaintiff’s claims for money damages against
27
various criminal prosecutors he has named as Defendants in this matter. Criminal
28
prosecutors are absolutely immune from civil damages suits premised upon acts
I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd
10
14cv2450 LAB (WVG)
1
committed within the scope of their official duties which are “intimately associated with
2
the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430
3
(1976); see also Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993); Burns v. Reed,
4
500 U.S. 478, 487-93 (1991). A prosecutor is immune even when the prosecutor’s
5
malicious or dishonest action deprived the defendant of his or her liberty. Ashelman, 793
6
F.2d at 1075.
7
and Booth are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) for seeking monetary
8
relief against defendants who are immune from such relief without leave to amend.
9
H.
Thus, Plaintiff’s claim against Defendants Cooley, Lacey, Matsumoto,
Judicial Defendants
10
In addition, to the Plaintiff is seeking money damages based on rulings made by
11
Superior Court Judges presiding over his criminal proceedings and Immigration Court
12
Judges presiding over his immigration proceedings, these Defendants are absolutely
13
immune. “Judges and those performing judge-like functions are absolutely immune
14
from damage liability for acts performed in their official capacities.” Ashelman v. Pope,
15
793 F.2d 1072, 1075 (9th Cir. 1986). Therefore, these Defendants have absolute
16
immunity from civil proceedings relating to these actions, which were performed within
17
their judicial discretion and are dismissed from this action with prejudice.
18
I.
Rule 8
19
Finally, while the Court will provide Plaintiff with the opportunity to file an
20
Amended Complaint, he must comply with Rule 8 of the Federal Rules of Civil
21
Procedure. Every complaint must contain “a short and plain statement of the claim
22
showing that the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual
23
allegations are not required, but “[t]hreadbare recitals of the elements of a cause of
24
action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
25
U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
26
Plaintiff’s Complaint falls far short of providing the purported Defendants, with “fair
27
notice” of what his claims are, or “the grounds upon which [they] rest[].” Leatherman
28
v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168
I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd
11
14cv2450 LAB (WVG)
1
(1993). While the Federal Rules adopt a flexible pleading policy, every complaint must,
2
at minimum, give fair notice and state the elements of each claim against each defendant
3
plainly and succinctly. Jones v. Community Redevelopment Agency, 733 F.2d 646, 649
4
(9th Cir. 1984); Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996).
5
III.
CONCLUSION AND ORDER
6
Good cause appearing, therefor, IT IS HEREBY ORDERED that:
7
1.
Plaintiff’s Motion to Appoint Counsel (ECF Doc. No. 3) is DENIED without prejudice.
8
2.
Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2) is
9
10
GRANTED.
3.
Plaintiff’s Complaint (ECF Doc. No. 1) is DISMISSED without prejudice for failing to
11
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(b). However, Plaintiff is GRANTED forty five (45)
12
days leave from the date this Order is filed in which to re-open the case by filing a Amended Complaint.
13
Plaintiff’s Amended Complaint address the deficiencies of pleading noted in this Order and must also
14
be complete in itself without reference to his original Complaint. See S.D. CAL. CIVLR 15.1; Hal Roach
15
Studios, Inc., 896 F.2d at 1546 (“[A]n amended pleading supersedes the original.”); King v. Atiyeh, 814
16
F.2d 565, 567 (9th Cir. 1987) (citation omitted) (“All causes of action alleged in an original complaint
17
which are not alleged in an amended complaint are waived.”).
18
Should Plaintiff fail to file a Amended Complaint within the time provided, this civil action shall
19
remain closed and case shall remain dismissed without prejudice based on Plaintiff’s failure to state a
20
claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2).
21
DATED: November 12, 2014
22
23
24
HONORABLE LARRY ALAN BURNS
United States District Judge
25
26
27
28
I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd
12
14cv2450 LAB (WVG)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?