(PC) Good v. Diaz ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAVON GOOD, No. 2:19-cv-2453 CKD P 12 Plaintiff, 13 v. ORDER 14 RALPH DIAZ, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 19 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. Since plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 The court is required to screen complaints brought by prisoners seeking relief against a 2 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 3 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 4 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 5 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 6 In order to avoid dismissal for failure to state a claim a complaint must contain more than 7 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 8 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 10 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 11 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 12 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 13 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 14 at 678. When considering whether a complaint states a claim upon which relief can be granted, 15 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 16 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 17 U.S. 232, 236 (1974). 18 In his complaint, plaintiff takes issue with the fact that he was denied a parole eligibility 19 hearing when he requested one in 2017. In 2016, California voters passed Proposition 57 which 20 authorized early parole consideration for some “nonviolent” felons. Initially, the California Code 21 of Regulations recognized those serving indeterminate sentences, such a plaintiff, as ineligible for 22 early parole consideration pursuant to Proposition 57. In re Edwards, 26 Cal. App. 5th, 1181, 23 1187-88 (2d. Dist. 2018). However, in 2018, the California Court of Appeal ordered the 24 California Department of Corrections and Rehabilitation (CDCR) to change the regulations to 25 include such inmates as long as the base offense for which they are in prison is a “nonviolent” 26 felony. Id. at 1189-93. Plaintiff’s base offense is sale of a controlled substance. His sentence for 27 that offense was enhanced to an indeterminate sentence of 25 years-to-life pursuant to 28 ///// 1 California’s “Three Strikes Law.” Under California law, specifically Cal. Penal Code § 667.5(c), 2 sale of a controlled substance is not recognized as a violent felony. 3 In light of the foregoing, it appears plaintiff is now entitled to a parole eligibility hearing 4 and was before he filed his complaint in September of 2019. This being the case, any claim 5 arising out of the denial of plaintiff’s 2017 request for a parole eligibility hearing is moot. 6 Plaintiff seeks damages in addition to injunctive relief. As defendants, plaintiff names 7 Ralph Diaz, Secretary of the CDCR, and Kathleen Allison, Director of Adult Institutions for 8 CDCR. He asserts they have excluded plaintiff from consideration for parole, but does not 9 explain how. 10 In light of the foregoing, plaintiff’s complaint fails to state a claim upon which relief can 11 be granted. While the court will order that plaintiff’s complaint be dismissed, plaintiff will be 12 provided one opportunity to amend. 13 If plaintiff elects to amend, plaintiff must demonstrate how the conditions complained of 14 have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 15 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in specific terms how 16 each named defendant is involved in order to state a claim for damages. There can be no liability 17 under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s 18 actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague 19 and conclusory allegations of official participation in civil rights violations are not sufficient. 20 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 21 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 22 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 23 complaint be complete in itself without reference to any prior pleading. This is because, as a 24 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 25 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 26 longer serves any function in the case. Therefore, in an amended complaint, as in an original 27 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 28 ///// 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is granted. 3 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 4 | shall be collected and paid in accordance with this court’s order to the Director of the California 5 | Department of Corrections and Rehabilitation filed concurrently herewith. 6 3. Plaintiff's complaint is dismissed. 7 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 8 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 9 | Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 10 | number assigned this case and must be labeled “Amended Complaint.” Failure to file an 11 || amended complaint in accordance with this order will result in a recommendation that this action 12 | be dismissed. 13 |) Dated: March 5, 2020 eo dp. Al x 4 CAROLYN K DELANEY) 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 | 4 19 good2453.14 20 21 22 23 24 25 26 27 28