(PC) Hill v. Whitworth ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 CYMEYON HILL, No. 2:20-cv-0905-JAM-EFB P 11 Plaintiff, 12 v. ORDER 13 STEVE WHITWORTH, et al., 14 Defendants. 15 16 Plaintiff, a civil detainee, proceeds without counsel in this action brought pursuant to 42 17 U.S.C. § 1983. He has filed an application for leave to proceed in forma pauperis. 18 Application for Leave to Proceed in Forma Pauperis 19 Plaintiff’s declaration makes the showing required by 28 U.S.C. 20 § 1915(a). Accordingly, the request to proceed in forma pauperis is granted. Because plaintiff is 21 a civil detainee, and therefore not a prisoner within the meaning of the Prison Litigation Reform 22 Act, he is not required to pay the court’s filing fee under 28 U.S.C. § 1915A. Page v. Torrey, 201 23 F.3d 1136, 1140 (9th Cir. 2000). 24 Screening Requirement 25 Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if 26 it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to 27 state a claim on which relief may be granted, or seeks monetary relief against an immune 28 defendant. 1 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 2 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 3 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 4 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 6 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 7 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 8 U.S. 662, 679 (2009). 9 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 10 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 11 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 12 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 13 678. 14 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 15 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 16 content that allows the court to draw the reasonable inference that the defendant is liable for the 17 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 18 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 19 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 20 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 21 Screening Order 22 Plaintiff’s allegations are not sufficient to survive screening. His overarching claim is that 23 his attorney, a judge who presided over his civil commitment proceedings, and several CDCR 24 officials are conspiring to have him murdered. However, plaintiff fails to allege any supportive 25 facts which, taken as true, would give rise to a cognizable claim. 26 Plaintiff also claims that his attorney took his money without adequately representing him, 27 and that his attorney and the judge who presided over his civil commitment proceedings made 28 racist and threatening comments to him. As for the civil commitment ruling, the defendant judge 1 is immune from suit because the claims against him are based on acts performed in his capacity as 2 a judge. See Ashelman v. Pope, 793 F.2d 1072, 1078 (1986) (holding that “a conspiracy between 3 judge and prosecutor to predetermine the outcome of a judicial proceeding, while clearly 4 improper, nevertheless does not pierce the immunity extended to judges and prosecutors”). As 5 for the claim against the defendant attorney, it too fails because there is no allegation that the 6 attorney is a state actor. See West v. Atkins, 487 U.S. 42, 48 (1988). Assuming he is a state 7 actor, he too is immune from plaintiff’s suit. See Fry v. Melaragno, 939 F.2d 832, 837 (1991) 8 (“Whether the government attorney is representing the plaintiff or the defendant, or is conducting 9 a civil trial, criminal prosecution or an agency hearing, absolute immunity is ‘necessary to assure 10 that . . . advocates . . . can perform their respective functions without harassment or 11 intimidation.’” (citation omitted)). 12 Leave to Amend 13 Plaintiff will be granted leave to file an amended complaint, if he can allege a cognizable 14 legal theory against a proper defendant and sufficient facts in support of that cognizable legal 15 theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must 16 afford pro se litigants an opportunity to amend to correct any deficiency in their complaints). 17 Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set 18 forth the claims and allegations against each defendant. 19 Any amended complaint must not exceed the scope of this order and may not add new, 20 unrelated claims. Further, any amended complaint must cure the deficiencies identified above 21 and also adhere to the following requirements: 22 Any amended complaint must identify as a defendant only persons who personally 23 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 24 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 25 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 26 legally required to do that causes the alleged deprivation). It must also contain a caption 27 including the names of all defendants. Fed. R. Civ. P. 10(a). 28 ///// wOAOe 2 UVES VAIN ER MUO POI OF LOPEN PAY OF ME St 1 Any amended complaint must be written or typed so that it so that it is complete in itself 2 || without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 3 || complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 4 | earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 5 || F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 6 || being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 7 | 1967)). 8 Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil 9 | Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 10 | See E.D. Cal. L.R. 110. 11 Conclusion 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 7) is granted; and 14 2. The complaint is dismissed with leave to amend within 30 days from the date of 15 service of this order. Failure to comply with this order may result in a 16 recommendation that this action be dismissed for the reasons stated herein. 17 | DATED: August 18, 2020. 18 Doutta Sid SH 19 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28