(PC) Kelly v. People of the State of CA ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL BRYAN KELLY, No. 2:21-cv-01369-CKD P 12 Plaintiff, 13 v. ORDER 14 PEOPLE OF THE STATE OF CALIFORNIA, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 18 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As 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 I. Screening Requirement 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 9 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 10 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 11 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 12 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 13 Cir. 1989); Franklin, 745 F.2d at 1227. 14 In order to avoid dismissal for failure to state a claim a complaint must contain more than 15 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 16 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 19 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 22 at 678. When considering whether a complaint states a claim upon which relief can be granted, 23 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 24 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 25 U.S. 232, 236 (1974). 26 II. Allegations in Amended Complaint 27 Plaintiff is currently confined at Pelican Bay State Prison (“PBSP”). However, the 28 genesis of the allegations in the first amended complaint appear to concern the Butte County 1 criminal prosecution that led to plaintiff’s incarceration. Named as defendants are several 2 attorneys who represented plaintiff during court proceedings or who represented Child Protective 3 Services. Plaintiff also names a Butte County Judge, the current and former governors of the 4 State of California, and the warden at PBSP. By way of relief, plaintiff seeks declaratory and 5 injunctive relief in the form of a federal investigation. He also requests compensatory and 6 punitive damages as well as the reversal of his criminal conviction and his immediate release 7 from confinement. 8 III. Legal Standards 9 The following legal standards are being provided to plaintiff based on his pro se status as 10 well as the nature of the allegations in his complaint. 11 While not entirely clear, it appears plaintiff believes he should be released from prison. 12 When a state prisoner challenges the legality of his custody and the relief he seeks is the 13 determination of his entitlement to an earlier or immediate release, his sole federal remedy is a 14 writ of habeas corpus which plaintiff would seek under 28 U.S.C. § 2254. Preiser v. Rodriguez, 15 411 U.S. 475, 500 (1973). Also, to the extent plaintiff seeks damages, plaintiff is informed he 16 cannot proceed on a §1983 claim for damages if the claim implies the invalidity of his conviction 17 or sentence. Heck v. Humphrey, 512 U.S. 477, 487 (1994). 18 The Supreme Court has held that judges acting within the course and scope of their 19 judicial duties are absolutely immune from liability for damages under § 1983. Pierson v. Ray, 20 386 U.S. 547 (1967). A judge is “subject to liability only when he has acted in the ‘clear absence 21 of all jurisdiction.’” Stump v. Sparkman, 435 U.S. 349, 356-7 (1978), quoting Bradley v. Fisher, 22 13 Wall. 335, 351 (1872). A judge’s jurisdiction is quite broad. The two-part test of Stump v. 23 Sparkman determines its scope: 24 The relevant cases demonstrates that the factors determining whether an act by a judge is a ‘judicial’ one relate to the nature of the act 25 itself, i.e., whether it is a function normally performed by a judge and to the expectation of the parties, i.e., whether they dealt with the 26 judge in his judicial capacity. 27 Id. at 361. 28 ///// 1 IV. Analysis 2 Before the court could screen plaintiff’s original complaint filed on July 27, 2021, plaintiff 3 filed a first amended complaint. ECF No. 7. However, before the court could screen plaintiff’s 4 first amended complaint, plaintiff filed a pleading labeled as an amendment to his first amended 5 complaint. ECF No. 8. In the amendment, plaintiff seeks to add two additional defendants to this 6 civil action. Because Local Rule 220 requires an amended pleading to be complete in itself 7 without reference to any additional filing, the court cannot screen plaintiff’s first amended 8 complaint plus the amendment. The court will, however, grant plaintiff leave to file a second 9 amended complaint that includes all claims against all defendants in a single pleading. For all 10 these reasons, plaintiff’s first amended complaint must be dismissed. The court will, however, 11 grant leave to file a second amended complaint within 30 days of this order. 12 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 13 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 14 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 15 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 16 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 17 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 18 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 19 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 20 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 21 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 22 complaint be complete in itself without reference to any prior pleading. This is because, as a 23 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 24 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 25 longer serves any function in the case. Therefore, in an amended complaint, as in an original 26 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 27 ///// 28 ///// ] V. Plain Language Summary for Pro Se Party 2 The following information is meant to explain this order in plain English and is not 3 || intended as legal advice. 4 The court cannot screen the allegations in your first amended complaint because it is not a 5 || complete pleading since you have attempted to amend it. Your first amended complaint is being 6 || dismissed, but you are being given the chance to fix the problems identified in this screening 7 || order. 8 Although you are not required to do so, you may file a second amended complaint within 9 || 30 days from the date of this order. If you choose to file a second amended complaint, pay 10 || particular attention to the legal standards identified in this order which may apply to your claims. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. Plaintiff's motion for leave to proceed in forma pauperis (ECF No. 2) is granted. 13 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 14 | shall be collected and paid in accordance with this court’s order to the Director of the California 15 || Department of Corrections and Rehabilitation filed concurrently herewith. 16 3. Plaintiffs first amended complaint is dismissed. 17 4. Plaintiff is granted thirty days from the date of service of this order to file a second 18 || amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules 19 | of Civil Procedure, and the Local Rules of Practice. The amended complaint must bear the 20 || docket number assigned this case and must be labeled “Amended Complaint.” Failure to file a 21 || second amended complaint in accordance with this order will result in a recommendation that this 22 || action be dismissed. 23 || Dated: December 7, 2021 / a8 } i | / p , a ce CAROLYNK. DELANEY 25 UNITED STATES MAGISTRATE JUDGE 26 12/kell1369.10c.modified 27 28