(PC)Ramirez v. Kozoll ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS A. RAMIREZ, No. 2:20-CV-0448-DMC-P 12 Plaintiff, 13 v. ORDER 14 CASEY L. KOZOLL, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 18 U.S.C. § 1983. Pending before the Court is Plaintiff’s first amended complaint, ECF No. 7.1 19 The Court is required to screen complaints brought by prisoners seeking relief 20 against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or 22 malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief 23 from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, 24 the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This 26 1 Plaintiff’s first amended complaint was filed as of right pursuant to Federal Rule 27 of Civil Procedure 15(a). Plaintiff later file a second amended complaint. See ECF No. 14. Because Plaintiff did not obtain prior leave of Court to file a second amended complaint, it will 28 be stricken as improperly filed. The action proceeds on the first amended complaint. 1 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 2 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 3 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 4 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 5 with at least some degree of particularity overt acts by specific defendants which support the 6 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 7 impossible for the Court to conduct the screening required by law when the allegations are vague 8 and conclusory. 9 10 I. PLAINTIFF’S ALLEGATIONS 11 Plaintiff names attorney Casey L. Kozoll as the only defendant. See ECF No. 7, 12 pg. 1. Plaintiff alleges that his underlying criminal conviction was based on a search warrant 13 executed without probable cause. See id. at 3. Plaintiff also appears to allege that Defendant 14 Kozoll, who was his attorney in the underlying criminal case, rendered ineffective assistance. See 15 id. at 4-5. Plaintiff seeks $2.5 million in damages. See id. at 6. 16 17 II. DISCUSSION 18 When a state prisoner challenges the legality of his custody and the relief he seeks 19 is a determination that he is entitled to an earlier or immediate release, such a challenge is not 20 cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal remedy is a petition for a writ 21 of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda, 22 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 23 1995) (per curiam). Thus, where a § 1983 action seeking monetary damages or declaratory relief 24 alleges constitutional violations which would necessarily imply the invalidity of the prisoner’s 25 underlying conviction or sentence, or the result of a prison disciplinary hearing resulting in 26 imposition of a sanction affecting the overall length of confinement, such a claim is not 27 cognizable under § 1983 unless the conviction or sentence has first been invalidated on appeal, by 28 habeas petition, or through some similar proceeding. See Heck v. Humphrey, 512 U.S. 477, 483- 1 84 (1994) (concluding that § 1983 claim not cognizable because allegations were akin to 2 malicious prosecution action which includes as an element a finding that the criminal proceeding 3 was concluded in plaintiff’s favor); Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir. 1997) 4 (concluding that § 1983 claim not cognizable because allegations of procedural defects were an 5 attempt to challenge substantive result in parole hearing); cf. Neal, 131 F.3d at 824 (concluding 6 that § 1983 claim was cognizable because challenge was to conditions for parole eligibility and 7 not to any particular parole determination); cf. Wilkinson v. Dotson, 544 U.S. 74 (2005) 8 (concluding that § 1983 action seeking changes in procedures for determining when an inmate is 9 eligible for parole consideration not barred because changed procedures would hasten future 10 parole consideration and not affect any earlier parole determination under the prior procedures). 11 Here, success on the merits of Plaintiff’s claims relating to his underlying criminal 12 case would necessarily imply the invalidity of any conviction resulting from that case. Plaintiff 13 has not alleged that the underlying criminal conviction has been overturned or otherwise 14 invalidated. It thus appears that Plaintiff’s claims are not cognizable under 42 U.S.C. § 1983. To 15 the extent Plaintiff can allege facts which would undermine this finding, Plaintiff will be provided 16 leave to amend. 17 18 III. CONCLUSION 19 Because it is possible that the deficiencies identified in this order may be cured by 20 amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the entire 21 action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is 22 informed that, as a general rule, an amended complaint supersedes the original complaint. See 23 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 24 amend, all claims alleged in the original complaint which are not alleged in the amended 25 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 26 Plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make 27 Plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 28 complete in itself without reference to any prior pleading. See id. 1 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 2 | conditions complained of have resulted in a deprivation of Plaintiff's constitutional rights. See 3 | Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 4 | each named defendant is involved, and must set forth some affirmative link or connection 5 | between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 6 | 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 7 Finally, Plaintiff is warned that failure to file an amended complaint within the 8 | time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 9 | 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 10 | with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 11 | See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiff's first amended complaint is dismissed with leave to amend; and 14 2. Plaintiff shall file a second amended complaint within 30 days of the date 15 | of service of this order. 16 17 | Dated: August 3, 2021 18 DENNIS M. COTA 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28