(PC) Sanford v. Allison ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT L. SANFORD, No. 2:22-cv-01225-DAD-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 KATHLEEN ALLISON, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. He commenced this civil action in the Sacramento County Superior Court and 19 defendant Kathleen Allison removed it to federal court on July 12, 2022.1 Defendant Allison 20 requests that the court screen the complaint pursuant to 28 U.S.C. § 1915A and dismiss any 21 claims that are frivolous, malicious, or which fail to state a cognizable claim. ECF No. 1 at 3. 22 After reviewing the complaint pursuant to § 1915A, the court concludes that it fails to state a 23 cognizable claim and must be dismissed with leave to amend. 24 ///// 25 ///// 26 27 1 Defendant Allison was served on June 14, 2022. ECF No. 1 at 2. The complaint also names Stephanie Welch, Chief Counsel for CDCR, as a defendant, but Welch has not been 28 served. Id. 1 Jurisdiction 2 Except where Congress otherwise dictates, a defendant may remove to federal court “any 3 civil action brought in a State court of which the district courts of the United States have original 4 jurisdiction . . .” 28 U.S.C. § 1441(a). Federal courts have original jurisdiction “of all civil 5 actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. 6 “If a case is improperly removed, the federal court must remand the action because it has no 7 subject-matter jurisdiction to decide the case.” ARCO Envtl. Remediation, L.L.C. v. Department 8 of Health & Envtl. Quality, 213 F.3d 1108, 1113 (9th Cir. 2000). Federal courts have an 9 independent obligation to examine their own jurisdiction. FW/PBS, Inc. v. City of Dallas, 493 10 U.S. 215 (1990). 11 Among various state law claims, plaintiff sues Kathleen Allison, Secretary for CDCR and 12 Stephanie Welch, Chief Counsel for CDCR, for violating the Takings Clause under the Fifth and 13 Fourteenth Amendments to the United States Constitution. ECF No. 1 at 10, 11, 13, 18-20. 14 Plainly, plaintiff has raised a federal claim over which this court has jurisdiction. See Ultramar 15 America, Ltd. v. Dwelle, 900 F.2d 1412, 1413-1414 (9th Cir. 1990) (federal question jurisdiction 16 exists if at least one claim in the complaint arises under federal law). This court may exercise 17 supplemental jurisdiction over any state-law claims provided that they “are so related to claims in 18 the action within such original jurisdiction that they form part of the same case or controversy 19 under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). 20 In a filing entitled “Objection to Removal of State Complaint to Federal Court,” plaintiff 21 requests that this action be remanded to state court. ECF No. 5 at 3. Plaintiff observes that co- 22 defendant Stephanie Welch, Chief Counsel for CDCR, did not join in the petition for removal. 23 Id. at 2. Welch, however, has not been properly served (see ECF No. 1 at 2, 5), and parties who 24 have not been served are not required to join in a petition for removal. See Salveson v. W. States 25 Bankcard Ass’n, 731 F.2d 1423, 1429 (9th Cir. 1984). Moreover, plaintiff concedes the existence 26 of federal question jurisdiction, stating, “there is only one federal constitutional violation[] . . . 27 and that was Plaintiff’s Fourteenth Amendment to be denied due process . . . .” Id. at 2. 28 Plaintiff’s objection, construed as a motion to remand this action to state court, is denied. 1 Having concluded that federal question jurisdiction exists, the court turns to the screening 2 of the complaint. 3 Screening Requirements 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 7 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 8 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 9 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). “[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 12 meritless legal theories or whose factual contentions are clearly baseless.” Jackson v. Arizona, 13 885 F.2d 639, 640 (9th Cir. 1989) (citation and internal quotations omitted), superseded by statute 14 on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Neitzke, 490 15 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, 16 has an arguable legal and factual basis. Id. 17 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 18 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 19 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 20 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 However, in order to survive dismissal for failure to state a claim, a complaint must contain more 22 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 23 allegations sufficient “to raise a right to relief above the speculative level.” Id. (citations 24 omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that 25 merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) 26 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, 1216 (3d 27 ed. 2004)). 28 ///// 1 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 2 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 3 Corp., 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content 4 that allows the court to draw the reasonable inference that the defendant is liable for the 5 misconduct alleged.” Id. (citing Bell Atl. Corp., 550 U.S. at 556). In reviewing a complaint 6 under this standard, the court must accept as true the allegations of the complaint in question, 7 Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), as well as construe the pleading 8 in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. 9 McKeithen, 395 U.S. 411, 421 (1969). 10 Screening Order 11 The gist of plaintiff’s complaint is that CDCR has maintained an inmate trust account for 12 plaintiff without plaintiff’s consent and has been taking plaintiff’s interest. ECF No. 1 at 15. 13 Plaintiff, relying on the case of Schneider v. Cal. Department of Corrections, 345 F.3d 716 (9th 14 Cir. 2003), alleges that this is a taking of private property for public purposes in violation of the 15 Fifth and Fourteenth Amendments to the U.S. Constitution. ECF No. 1 at 15, 18-19. It appears 16 that plaintiff also intends to allege a due process violation. See ECF No. 5 at 2. “Due process 17 claims, like Takings Clause claims, require a showing of a . . . property interest protected by the 18 Constitution.” Sierra Med. Servs. All. v. Kent, 883 F.3d 1216, 1226 (9th Cir. 2018) (internal 19 quotations omitted). Plaintiff’s federal claims cannot survive screening because plaintiff has not 20 alleged any facts showing that interest accrued on his inmate trust account. Absent such an 21 allegation, plaintiff has not shown he was deprived of a protected property interest without due 22 process or that his property was taken without just compensation in violation of the Takings 23 Clause. In any amended complaint, plaintiff must specify whether interest accrued on his inmate 24 trust account. 25 Plaintiff also asserts several claims based on state tort law. The California Torts Claims 26 Act (“Act”) requires that a party seeking to recover money damages from a public entity or its 27 employees submit a claim to the entity before filing suit in court, generally no later than six 28 months after the cause of action accrues. Cal. Gov’t Code §§ 905, 911.2, 945, 950.2 (emphasis 1 added). When a plaintiff asserts a claim subject to the Act, he must affirmatively allege 2 compliance with the claim presentation procedure, or circumstances excusing such compliance, in 3 his complaint. Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 209 (2007). Here, plaintiff 4 vaguely claims that he has “certainly satisfied this requirement timely.” ECF No. 1 at 10, ¶ 5. 5 This is not sufficient to plead compliance with the claim presentation procedure. If plaintiff 6 wishes to pursue his state law claims in an amended complaint, he must “allege facts 7 demonstrating [ ] that a claim was timely presented . . . . ” Shirk, 42 Cal. 4th at 209 (emphasis 8 added). 9 Leave to Amend 10 Plaintiff is cautioned that any amended complaint must identify as a defendant only 11 persons who personally participated in a substantial way in depriving him of his constitutional 12 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 13 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 14 perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also 15 include any allegations based on state law that are so closely related to his federal allegations that 16 “they form the same case or controversy.” See 28 U.S.C. § 1367(a). 17 The amended complaint must also contain a caption including the names of all defendants. 18 Fed. R. Civ. P. 10(a). 19 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 20 George, 507 F.3d at 607. Nor, as mentioned above, may he bring unrelated claims against 21 multiple defendants. Id. 22 Any amended complaint must be written or typed so that it so that it is complete in itself 23 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 24 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 25 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 26 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 27 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 28 1967)). ] Any amended complaint should be as concise as possible in fulfilling the above 2 || requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 3 || background which has no bearing on his legal claims. He should also take pains to ensure that his 4 || amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 5 || and organization. Plaintiff should carefully consider whether each of the defendants he names 6 || actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 7 || which plaintiff names dozens of defendants will not be looked upon favorably by the court. 8 Conclusion 9 Accordingly, it is ORDERED that: 10 1. Plaintiff's “Objection to Removal of State Complaint to Federal Court,” construed as a 11 request to remand this action to state court (ECF No. 5), is DENIED. 12 2. The Clerk of the Court shall send plaintiff a copy for the form to be used by a prisoner 13 in filing a complaint under the Civil Rights Act, 42 U.S.C. § 1983. 14 3. Plaintiff's complaint (ECF No. 1, Ex. A) is dismissed with leave to amend within 30 15 days of service of this order. Failure to comply with any part of this this order may 16 result in dismissal of this action. 17 | DATED: November 2, 2022. 18 20 EDMUND F. BRENNAN 31 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28