(PC) Davis v. Spearman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAMIEN DAVIS, No. 2:19-cv-1301-EFB P 12 Plaintiff, 13 v. ORDER 14 M. SPEARMAN, 15 Defendant. 16 17 Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C. 18 § 1983, seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (ECF No. 2). 19 Leave to Proceed In Forma Pauperis 20 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 21 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 22 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 23 § 1915(b)(1) and (2). 24 Screening Standards 25 Federal courts must engage in a preliminary screening of cases in which prisoners seek 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 28 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 1 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 2 relief.” Id. § 1915A(b). 3 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 4 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 5 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 6 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 8 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 9 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 10 U.S. 662, 679 (2009). 11 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 12 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 13 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 14 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 15 678. 16 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 17 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 18 content that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 20 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 21 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 22 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 23 Screening Order 24 Plaintiff’s complaint (ECF No. 1) alleges that “CDCR has implemented an underground 25 unconstitutional provision in the Code of Regulation that deprives [him] . . . . due to [the] restraint 26 of liberty and life itself.” Id. at 5. As relief, plaintiff requests (1) “an injunction . . . to cease the 27 illegal restraint upon [him]”; or alternatively (2) that the court “grant a new provision that is 28 ///// 1 consistent with the due process clause and equal protection clause . . . .” Id. Plaintiff has failed to 2 state a viable section 1983 claim. 3 First, plaintiff’s allegations are too vague and ambiguous to support a claim under either 4 the due process or equal protection clauses of the Fourteenth Amendment. And to the extent that 5 any such claim, which if successful, would necessarily undermine his current confinement, it is 6 barred by Heck v. Humphrey, 512 U.S. 477, (1994). Heck holds that if success in a section 1983 7 action would implicitly question the validity of confinement or its duration, the plaintiff must first 8 show that the underlying conviction was reversed on direct appeal, expunged by executive order, 9 declared invalid by a state tribunal, or questioned by the grant of a writ of habeas corpus. 10 Muhammad v. Close, 540 U.S. 749, 751 (2004). 11 Second, to the extent plaintiff is requesting to be released from custody, his claim must be 12 brought in a habeas action. See Nettles v. Grounds, 830 F.3d 922, 927-931 (9th Cir. 2016) 13 (claims which would result in immediate release if successful fall within core of habeas corpus; 14 claims which would not necessarily affect the length of time to be served if successful fall outside 15 core of habeas corpus and must be brought, if at all, under § 1983). 16 Based on the foregoing, plaintiff’s complaint is dismissed with leave to amend. 17 Leave to Amend 18 Plaintiff may choose to amend his complaint. He is cautioned that any amended 19 complaint must identify as a defendant only persons who personally participated in a substantial 20 way in depriving him of his constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 21 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, 22 participates in another’s act or omits to perform an act he is legally required to do that causes the 23 alleged deprivation). Plaintiff may also include any allegations based on state law that are so 24 closely related to his federal allegations that “they form the same case or controversy.” See 28 25 U.S.C. § 1367(a). 26 The amended complaint must also contain a caption including the names of all defendants. 27 Fed. R. Civ. P. 10(a). 28 ///// 1 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 2 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Nor may he bring unrelated claims against 3 multiple defendants. Id. 4 Any amended complaint must be written or typed so that it so that it is complete in itself 5 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 6 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 7 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 8 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 9 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 10 1967)). 11 Any amended complaint should be as concise as possible in fulfilling the above 12 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 13 background which has no bearing on his legal claims. He should also take pains to ensure that his 14 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 15 and organization. Plaintiff should carefully consider whether each of the defendants he names 16 actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 17 which plaintiff names dozens of defendants will not be looked upon favorably by the court. 18 Conclusion 19 Accordingly, it is ORDERED that: 20 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is GRANTED; 21 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in 22 accordance with the notice to the California Department of Corrections and Rehabilitation filed 23 concurrently herewith; 24 3. Plaintiff’s complaint (ECF No. 1) is dismissed with leave to amend within 30 days of 25 service of this order; and 26 ///// 27 ///// 28 ///// 1 4. Failure to comply with this order may result in dismissal of this action. 2 || DATED: March 19, 2020. tid, PDEA 4 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28