Cristiano v. Brown et al
Filing
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ORDER: (1) Denying 8 Motion for Judicial Notice; and (2) Dismissing Civil Action for Failing to State a Claim. Signed by Judge Roger T. Benitez on 8/9/2017.(All non-registered users served via U.S. Mail Service)(knb)
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F~ I LED
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" "''AUG -9 PH 2: ea
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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JOSEPH A. CRISTIANO,
CDCR#AW-6241,
Case No.: 3:16-cv-3077-BEN-BLM
ORDER:
Plaintiff,
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vs.
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1) DENYING MOTION FOR
JUDICIAL NOTICE
(ECFNo. 8]
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EDMUND G. BROWN, Jr., Governor,
et al.,
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AND
Defendants.
2) DISMISSING CIVIL ACTION
FOR FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND§ 1915A(b)(l)
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JOSEPH A. CRISTIANO ("Plaintiff'), incarcerated at Pleasant Valley State Prison
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("PVSP") and proceeding prose, has filed this civil rights action filed pursuant to 42
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u.s.c. § 1983.
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I.
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Procedural Background
On April 5, 2017, the Court granted Plaintiff leave to proceed in forma pauperis,
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but dismissed his Complaint sua sponte for failing to state a claim pursuant to the initial
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screening provisions in 28 U.S.C. § 1915(e)(2) and § 1915A(b), and granted him leave to
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amend. See ECF No. 5 at 12-13.
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In his Complaint, Plaintiff sought to sue the Governor of California, high ranking
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officials at the California Department of Corrections and Rehabilitation ("CDCR"), the
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Warden of PSVP, and the San Diego Superior Court Judge who "sentenced [him] to a
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plea agreement that placed [him] in a prison system" that allegedly violated his Eighth
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Amendment rights due to overcrowding. (ECF No. 1 at 2.) With the exception of several
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paragraphs in which he complained of a non-functioning toilet, the lack of showers at the
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California Institution for Men ("CIM") in Chino where he was first incarcerated, and
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several other reports of gang intimidation, cell flooding, vermin, and power outages at
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PVSP where he is now incarcerated, id. at 27-29, Plaintiffs pleading contained virtually
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no facts specific to him or involving the persons he sought to sue. Instead, it was
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comprised of a narrative history of the still-pending California class action, Brown v.
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Plata, 1 of which he did not plainly claim to be a member, followed by case citations and
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quotations expounding upon broad principles of Eighth Amendment law, proportionality,
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and judicial immunity. Id. at 10-24.
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In a lengthy and detailed April 5, 2017 Order, this Court found Plaintiff's
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Complaint failed to state a§ 1983 claim for several reasons: 1) his claims for money
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damages against the San Diego Superior Court Judge who sentenced him were barred by
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absolute judicial immunity, see ECF No. 5 at 6; 2) he alleged no personal wrongdoing on
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behalf of the CDCR officials he claimed were responsible for supervising or training
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subordinates, id. at 6-8; 3) his claims of prison overcrowding and harsh conditions, by
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themselves, failed to state a plausible Eighth Amendment claim as to him personally, id.
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at 8-9; and 4) his request to "revers[e] and vacate" his criminal conviction and sentence
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was not a remedy available under § 1983. Id. at 10-11. Plaintiff was clearly and plainly
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notified of all these pleading deficiencies, referred to the relevant binding authority
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supporting the Court's analysis, and provided an opportunity to fix these problems in an
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1 See
generally Brown v. Plata, 463 U.S. 493, 499-503 (2011) (affirming 3-judge district court order
requiring California to reduce its prison population).
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3:16-cv-3077-BEN-BLM
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Amended Complaint. Id. at 5-12.
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Plaintiff has since filed a First Amended Complaint ("FAC") (ECF No. 6),
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followed by a "Motion for Judicial Notice," both of which are essentially objections to
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the Court's April 5, 2017 Order (ECF No. 8). Because Plaintiffs FAC still fails to state
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any claim upon which § 1983 relief can be granted, however, the Court denies his
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"Motion for Judicial Notice" and dismisses the entire action pursuant to 28 U.S.C. §
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1915(e)(2)(B)(ii) and§ 1915A(b)(l) with prejudice and without further leave to amend.
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II.
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Motion for Judicial Notice
First, Plaintiff seeks "judicial notice" of the Court's "demonstrate[d] ... lack of
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understanding of the claims ... proffered by [him]," and claims it erred by dismissing his
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Complaint for failing to state a claim. (ECF No. 8 at 1.) In his Motion, Plaintiff argues
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the Court misconstrued his Complaint altogether, and that his claim is "simple." (ECF
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No. 8 at 1.) Plaintiff seeks "judicial notice" of the fact that he was "sentenced to a term in
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a state prison system ruled in violation of the 8th Amendment," and that "by adding an
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8th Amendment violation on top of [his] sentence," his sentence "bee[a]me
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'unauthorized.'" Id. "Because an unauthorized sentence is structural error it is reviewable
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at any time, requires reversal and is prejudicial per se." Id.
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"The court may judicially notice a fact that is not subject to reasonable dispute
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because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can
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be accurately and readily determined from sources whose accuracy cannot reasonably be
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questioned." FED. R EVID. 201(b)(l )-(2). While Plaintiffs Motion is captioned as one
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requesting judicial notice, the document is actually comprised of conclusory argument
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that his state court criminal conviction and sentence violates the Eighth Amendment. "A
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request for judicial notice is not a proper vehicle for legal argument." Garcia v.
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California Supreme Court, No. CV 12-4504-DWM, 2014 WL 309000, at *1 (N.D. Cal.
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Jan. 21, 2014). "As a general rule, a court may not take judicial notice of proceedings or
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records in another cause so as to supply, without formal introduction of evidence, facts
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essential to support a contention in a cause then before it." MIV Am. Queen v. San Diego
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1 Marine Const. Corp., 708 F.2d 1483, 1491 (9th Cir. 1983) (citing 29 Am. Jur. 2d
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Evidence§ 58 (1967)); see also Von Saher v. Norton Simon Museum ofArt at Pasadena,
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592 F.3d 954, 560 (9th Cir. 2009) ("[J]udicial notice is generally not the appropriate
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means to establish the legal principles governing the case.").
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For these reasons, Plaintiffs Motion for Judicial Notice (ECF No. 8) is DENIED.
III.
Screening of Amended Complaint per 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)
Because Plaintiff remains a prisoner and is proceeding IFP, his Amended
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Complaint (ECF No. 6), like his original, requires a pre-answer screening pursuant to 28
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U.S.C. § 1915(e)(2) and§ 1915A(b).
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A.
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"The purpose of§ 1915A is 'to ensure that the targets of frivolous or malicious
Standard of Review
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suits need not bear the expense of responding."' Nordstrom v. Ryan, 762 F.3d 903, 920
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n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681
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(7th Cir. 2012)). "The standard for determining whether a plaintiff has failed to state a
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claim upon which relief can be granted under§ 1915(e)(2)(B)(ii) is the same as the
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Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim." Watison v.
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Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113,
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1121 (9th Cir. 2012) (noting that screening pursuant to§ 1915A "incorporates the
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familiar standard applied in the context of failure to state a claim under Federal Rule of
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Civil Procedure 12(b)(6)").
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The Prison Litigation Reform Act requires the Court to review complaints filed by
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all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained
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in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of
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criminal law or the terms or conditions of parole, probation, pretrial release, or
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diversionary program," "as soon as practicable after docketing." See 28 U.S.C. §§
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1915(e)(2), 1915A(b). Under these screening statutes, the Court must sua sponte dismiss
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complaints, or any portions of them, which are frivolous, malicious, fail to state a claim,
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or which seek damages from defendants who are immune. See 28 U.S.C. §§
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3:16-cv-3077-BEN-BLM
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1915(e)(2)(B), 1915A(b); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en
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bane) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621F.3d1002, 1004 (9th
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Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).
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All complaints must contain "a short and plain statement of the claim showing that
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the pleader is entitled to relief." FED. R. Crv. P. 8(a)(2). Detailed factual allegations are
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not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by
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mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Determining whether a
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complaint states a plausible claim for relief [is] ... a context-specific task that requires
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the reviewing court to draw on its judicial experience and common sense." Id. The "mere
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possibility of misconduct" falls short of meeting this plausibility standard. Id.; see also
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Moss v. US. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
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"When there are well-pleaded factual allegations, a court should assume their
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veracity, and then determine whether they plausibly give rise to an entitlement to relief."
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Iqbal, 556 U.S. at 679. The court "ha[s] an obligation where the petitioner is prose,
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particularly in civil rights cases, to construe the pleadings liberally and to afford the
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petitioner the benefit of any doubt," Heb be v. Pliler, 627 F.3d 338, 342 & n. 7 (9th Cir.
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2010), but it "may not supply essential elements of the claim that were not initially pied."
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Chapman v. Pier 1 Imports (US.) Inc., 631 F.3d 939, 954 (9th Cir. 2011) (citations
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omitted).
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B.
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Plaintiffs Amended Complaint (ECF No. 6), while it is captioned as his "First
Plaintiffs Amended Complaint
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Amended Complaint" is not a complaint at all: it fails to identify the Defendants
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altogether, see FED. R. Crv. P. lO(a) ("[T]he title of the complaint must name all the
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parties"), and it fails to contain "factual content that allows the court to draw the
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reasonable inference that [any] defendant is liable for the misconduct alleged" in it. Iqbal,
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556 U.S. at 678; see also FED. R. Crv. P. 8(a)(2) (governing general rules of pleading and
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requiring each complaint contain "a short and plain statement of the claim showing that
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1 the pleader is entitled to relief').
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Instead, Plaintiffs Amended Complaint, much like his original, contains citations
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to various Supreme Court cases, law review and newspaper articles on the general topic
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of prison overcrowding and the Plata class action, the "Trevor Carey Talk Program on
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96.7 F.M. Radio in Fresno," and broad propositions of"sound legal theory backing his
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arguments." See ECF No. 6 at 1-11. Plaintiff concludes from these "labels and
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conclusions," Iqbal, 556 U.S. at 678, that his sentence "violates the 13th Amendment['s]
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prohibition of peonage/slavery," that he has "become a victim of ... judicial oversight,"
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and that only [his] release can solve the on-going violation since the entire system has
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been ruled to violate the [C]onstitution." Id. at 5, 7, 9.
But nowhere in his Amended Complaint does Plaintiff allege "sufficient factual
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matter, accepted as true, to 'state a[§ 1983] claim to relief that is plausible on its face."
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Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570), and he continues to request that
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his criminal sentence be "reversed," his sentence be vacated, and his criminal records he
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expunged and destroyed. (ECF No. 6 at 10-11.) As Plaintiff was previously advised,
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however, see ECF No. 5 at 10-11, challenges to the fact or duration of confinement must
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be brought in a habeas action, not in a civil rights case. Habeas corpus "is the exclusive
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remedy ... for the prisoner who seeks 'immediate or speedier release' from
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confinement." Skinner v. Switzer, 562 U.S. 521, 525 (2011) (quoting Wilkinson v.
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Dotson, 544 U.S. 74, 82 (2005)). A challenge to the fact or duration of confinement that
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would, if successful, result in immediate or speedier release falls within the "core" of
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habeas corpus. Freiser v. Rodriguez, 411 U.S. 475, 487-89 (1973); see also Muhammad
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v. Close, 540 U.S. 749, 750 (2004) (per curiam) ("Challenges to the validity of any
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confinement or to particulars affecting its duration are the province of habeas corpus.").
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C.
Leave to Amend
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Because Plaintiff is proceeding pro se, the Court would normally grant him an
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opportunity to amend. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034,
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1041 (9th Cir. 2011) (setting forth standard of review and explaining that leave to amend
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1 should be given unless amendment would be futile); FED. R. Crv. P. 15(a); Lopez, 203
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F.3d at 1127 (leave to amend should be granted unless the district court "determines that
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the pleading could not possibly be cured by the allegation of other facts.")
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However, the Court denies Plaintiff further leave to amend in this case because
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doing so appears futile given Plaintiffs failure to address (or even to attempt to address)
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the pervasive factual pleading deficiencies identified in the Court's detailed April 5, 2017
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Order. See Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008)
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(noting district court's discretion to deny leave where amendment would be futile, among
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other reasons); see also Diamond Real Estate v. Am. Brokers Conduit, No. 16-CV-03937-
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HSG, 2017 WL 2180968, at *2 (N.D. Cal. May 18, 2017).
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IV.
Conclusion and Order
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For the reasons discussed, the Court:
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1)
DENIES Plaintiffs Motion for Judicial Notice (ECF No. 8); and
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DISMISSES this civil action without further leave to amend for failure to
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state a claim upon which§ 1983 relief can be granted pursuant to 28 U.S.C.
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§ 1915(e)(2)(B)(ii) and§ 1915A(b)(l), CERTIFIES that an IFP appeal would not be
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taken in good faith pursuant to 28 U.S.C. § 1915(a)(3), and DIRECTS the Clerk of Court
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to enter a final judgment of dismissal and close the file.
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IT IS SO ORDERED.
~
Dated~ ~~/r
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.
GERT. BENITE
United States District Judge
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