(PC) Brooks v. Covello ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIE LEE BROOKS, II, No. 2:20-CV-1573-WBS-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 PATRICK COVELLO, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s first amended complaint, ECF 34. 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 means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 27 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the 28 complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it 1 rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege 2 with at least some degree of particularity overt acts by specific defendants which support the 3 claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is 4 impossible for the Court to conduct the screening required by law when the allegations are vague 5 and conclusory. 6 7 I. PROCEDURAL HISTORY 8 This case was initially filed in the Northern District of California and transferred to 9 this Court as a petition for a writ of habeas corpus on August 7, 2020. See ECF No. 11. 10 Thereafter, on October 2, 2020, Plaintiff filed a prisoner civil rights complaint in this Court in the 11 transferred action. See ECF No. 17. On October 21, 2020, the Court ordered this action 12 redesignated as a prisoner civil rights action. See ECF No. 20. The Court also granted Plaintiff 13 leave to proceed in forma pauperis. See id. 14 On November 20, 2020, Plaintiff filed a motion for injunctive relief seeking 15 immediate release from prison in light of COVID-19. See ECF No. 22. The District Judge 16 denied the motion on August 10, 2021. See ECF No. 27. Plaintiff has since filed three additional 17 motions seeking the same relief. See ECF Nos. 30, 31, and 35. On August 18, 2021, Plaintiff 18 filed a notice of withdrawal of his habeas petition, see ECF No. 33, as well as a first amended 19 prisoner civil rights complaint, see ECF No. 34. 20 21 II. DISCUSSION 22 Plaintiff’s first operative pleading was a petition for a writ of habeas corpus filed 23 in the Northern District of California. Plaintiff then amended his operative pleading with a civil 24 rights complaint filed in this Court. This pleading was filed as of right without need for leave of 25 court pursuant to Federal Rule of Civil Procedure 15. Plaintiff then withdrew his habeas petition 26 and filed an amended civil rights complaint. Arguably, leave of court should have been required 27 to file the amended complaint because Plaintiff had already amended as of right with the first 28 civil rights complaint. The Court need not resolve the issue because the result is the same under 1 both pleadings. 2 In both the initial and amended civil rights complaints, ECF Nos. 17 and 34, 3 Plaintiff seeks his immediate release from prison. As Plaintiff acknowledges, and as this Court 4 has explained to Plaintiff in the context of his first motion for injunctive relief seeking immediate 5 release, § 1983 is not an available means of seeking such relief. When a state prisoner seeks a 6 determination that he is entitled to an earlier or immediate release, such a challenge is not 7 cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal remedy is a petition for a writ 8 of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda, 9 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 10 1995) (per curiam); see also ECF Nos. 26 (findings and recommendations denying injunctive 11 relief seeking immediate release) and 27 (order adopting findings and recommendations in full). 12 Because the Court is unable to grant the relief requested, the Court recommends this action be 13 dismissed for failure to state a claim upon which relief can be granted. 14 / / / 15 / / / 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 I. CONCLUSION 2 It does not appear possible that the deficiencies identified herein can be cured by 3 | amending the complaint. Therefore, Plaintiff is not entitled to leave to amend prior to dismissal 4 | of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). 5 Based on the foregoing, the undersigned recommends that: 6 1. This action be dismissed for failure to state a claim upon which relief can 7 | be granted under 42 U.S.C. § 1983; and 8 2. All pending motions, ECF Nos. 30, 31, 35, and 36, be denied as moot. 9 These findings and recommendations are submitted to the United States District 10 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 11 | after being served with these findings and recommendations, any party may file written 12 | objections with the court. Responses to objections shall be filed within 14 days after service of 13 | objections. Failure to file objections within the specified time may waive the right to appeal. See 14 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 15 16 | Dated: October 13, 2021 Ssvcqo_ M7 DENNIS M. COTA 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28