(PC) Walker v. Rios ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUSTIN WALKER, AKA EL DEY BEY No. 2:23-cv-01900-CKD P SHABAZZ ALI, 12 Plaintiff, 13 ORDER v. 14 DORA RIOS, 15 Defendant. 16 17 18 Plaintiff is a county inmate proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. 19 § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This 20 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 21 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 22 § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 24 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 27 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 28 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 1 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 2 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 3 § 1915(b)(2). 4 I. Screening Requirement 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 7 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 10 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 12 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 14 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 16 Cir. 1989); Franklin, 745 F.2d at 1227. 17 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 18 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 19 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 20 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 21 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 22 this standard, the court must accept as true the allegations of the complaint in question, Hosp. 23 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 24 most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. 25 McKeithen, 395 U.S. 411, 421 (1969). 26 II. Allegations in the Complaint 27 At all times relevant to the allegations in the complaint, plaintiff was an inmate at the 28 Solano County Detention Facility. Defendant Dora Rios is a Solano County Superior Court 1 judge. The complaint alleges that Judge Rios violated her constitutional oath on or about 2 September 1, 2023 and violated plaintiff’s Fifth Amendment rights. There are no other facts 3 contained in the complaint. By way of relief, plaintiff seeks one billion dollars in compensatory 4 damages. 5 III. Legal Standards 6 The Supreme Court has held that judges acting within the course and scope of their 7 judicial duties are absolutely immune from liability for damages under § 1983. Pierson v. Ray, 8 386 U.S. 547 (1967). A judge is “subject to liability only when he has acted in the ‘clear absence 9 of all jurisdiction.’” Stump v. Sparkman, 435 U.S. 349, 356-7 (1978), quoting Bradley v. Fisher, 10 13 Wall. 335, 351 (1872). A judge’s jurisdiction is quite broad. The two-part test of Stump v. 11 Sparkman determines its scope: 12 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 13 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 14 judge in his judicial capacity. 15 Id. at 361. 16 IV. Analysis 17 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 18 unable to determine whether the current action is frivolous or fails to state a claim for relief. The 19 court has determined that the complaint does not contain a short and plain statement as required 20 by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a 21 complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones 22 v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least 23 some degree of particularity overt acts which defendants engaged in that support plaintiff's claim. 24 Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the 25 complaint must be dismissed. The court will, however, grant leave to file an amended complaint. 26 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 27 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 28 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how 1 each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there 2 is some affirmative link or connection between a defendant’s actions and the claimed deprivation. 3 Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); 4 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory 5 allegations of official participation in civil rights violations are not sufficient. Ivey v. Bd. of 6 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 7 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 8 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 9 complaint be complete in itself without reference to any prior pleading. This is because, as a 10 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 11 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 12 longer serves any function in the case. Therefore, in an amended complaint, as in an original 13 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 14 V. Motion for the Appointment of Counsel 15 Plaintiff requests that the court appoint counsel. District courts lack authority to require 16 counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. 17 Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney 18 to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 19 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 20 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 21 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 22 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 23 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 24 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 25 common to most prisoners, such as lack of legal education and limited law library access, do not 26 establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 27 Having considered the factors under Palmer, the court finds that plaintiff has failed to 28 meet his burden of demonstrating exceptional circumstances warranting the appointment of 1 counsel at this time. 2 VI. Other Pending Motions 3 Also pending before this court is plaintiff’s motion to stay all further proceedings (ECF 4 No. 24) as well as plaintiff’s motion for injunctive relief (ECF No. 24). Plaintiff has also filed 23 5 separate notices, requests, affidavits, and exhibits seeking various forms of immediate relief from 6 this court. See ECF Nos. 6-8, 9-12, 13, 15, 18-22, 25-26, 29-34, 36-41. The undersigned will 7 defer consideration of all of these matters until such time as plaintiff files an amended complaint 8 that conforms to the pleading standards identified in this order and adequately states a cognizable 9 claim for relief. See Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986) 10 (emphasizing that “[d]istrict courts have inherent power to control their dockets.”). 11 VII. Warning to Plaintiff of Potential Filing Restrictions 12 Based on this record of excessive filings, plaintiff is additionally cautioned that a litigant 13 proceeding in forma pauperis may suffer restricted access to the court when it is determined that 14 he has filed excessive motions in a pending action. DeLong v. Hennessey, 912 F.2d 1144 (9th 15 Cir. 1990); see also Tripati v. Beaman, 878 F2d 351, 352 (10th Cir. 1989). Plaintiff is cautioned 16 that this court views the number of motions filed to date as excessive and that consideration will 17 be given to restricted court access if plaintiff does not exercise immediate restraint from this point 18 forward. If plaintiff ignores this warning and files any additional pleading other than a first 19 amended complaint, this court will immediately impose filing restrictions in this case and will 20 strike all further pleadings from the docket that are filed in violation of this order. 21 VIII. Plain Language Summary for Pro Se Party 22 The following information is meant to explain this order in plain English and is not 23 intended as legal advice. 24 The court has reviewed the allegations in your complaint and determined that they do not 25 state any claim against the defendant. Your complaint is being dismissed, but you are being 26 given the chance to fix the problems identified in this screening order. 27 Although you are not required to do so, you may file an amended complaint within 30 28 days from the date of this order. If you choose to file an amended complaint, pay particular 1 | attention to the legal standards identified in this order which may apply to your claims. 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiffs motion for leave to proceed in forma pauperis (ECF No. 17) is granted. 4 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 5 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 6 || § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 7 | Sheriff of Solano County filed concurrently herewith. 8 3. Plaintiff's complaint is dismissed. 9 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 10 || complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 11 || Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number 12 || assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and 13 || two copies of the amended complaint; failure to file an amended complaint in accordance with 14 || this order will result in a recommendation that this action be dismissed. 15 5. Plaintiff's motion for the appointment of counsel (ECF No. 35) is denied without 16 || prejudice. 17 6. Plaintiff is cautioned against filing excessive pleadings in this case that prevent the 18 | court from adjudicating plaintiff’s complaint in a timely manner. If plaintiff files any 19 | pleading other than a first amended complaint, this court will immediately impose filing 20 || restrictions in this case and will strike all further pleadings from the docket that are filed in 21 | violation of this order. 22 || Dated: December 1, 2023 / a8 } if | / 3 p , Si 8 CAROLYNK. DELANEY 24 UNITED STATES MAGISTRATE JUDGE 25 26 12/walk1900.14.new+warning 27 28