(PC) Foster v. Ramirez ( 2024 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DeEARL FOSTER, No. 2:24-CV-2036-DMC-P 12 Plaintiff, 13 v. ORDER 14 ALDANA RAMIREZ, 15 Defendant. 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 original complaint, ECF No. 1. 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). This provision also applies if the plaintiff was incarcerated at the time the action was 22 initiated even if the litigant was subsequently released from custody. See Olivas v. Nevada ex rel. 23 Dep’t of Corr., 856 F.3d 1281, 1282 (9th Cir. 2017). The Court must dismiss a complaint or 24 portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can 25 be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 26 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that 27 complaints contain a “. . . short and plain statement of the claim showing that the pleader is 28 entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, 1 concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to 2 Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice 3 of the plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 4 1129 (9th Cir. 1996). Because Plaintiff must allege with at least some degree of particularity 5 overt acts by specific defendants which support the claims, vague and conclusory allegations fail 6 to satisfy this standard. Additionally, it is impossible for the Court to conduct the screening 7 required by law when the allegations are vague and conclusory. 8 In the current action, Plaintiff claims Defendant, who is a police officer for the 9 City of Sacramento, lied during his criminal preliminary hearing. See ECF No. 1. This claim 10 was first presented in Foster v. Ramirez, E. Dist. Cal. case no. 2:22-cv-1064-WBS-AC-P (Foster 11 I). Foster I was dismissed without prejudice for failure to comply with the Court's order to 12 resolve the fee status for the case. See ECF Nos. 7 and 8 in Foster I. Plaintiff sought 13 reconsideration, which was denied. See ECF No. 11 in Foster I. In denying reconsideration, the 14 District Judge noted, among other things, that re-opening the case would be futile because 15 Plaintiff failed to state a cognizable claim. See id. Plaintiff initiated the current action on July 16 26, 2024. See ECF No. 1. 17 As the District Judge noted in Foster I, Plaintiff's claim does not appear to be 18 cognizable. When a state prisoner challenges the legality of his custody and the relief he seeks is 19 a determination that he is entitled to an earlier or immediate release, such a challenge is not 20 cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal remedy is a petition for a writ 21 of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda, 22 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 23 1995) (per curiam). Thus, where a § 1983 action seeking monetary damages or declaratory relief 24 alleges constitutional violations which would necessarily imply the invalidity of the prisoner’s 25 underlying conviction or sentence, or the result of a prison disciplinary hearing resulting in 26 imposition of a sanction affecting the overall length of confinement, such a claim is not 27 cognizable under § 1983 unless the conviction or sentence has first been invalidated on appeal, by 28 habeas petition, or through some similar proceeding. See Heck v. Humphrey, 512 U.S. 477, 483- 1 84 (1994) (concluding that § 1983 claim not cognizable because allegations were akin to 2 malicious prosecution action which includes as an element a finding that the criminal proceeding 3 was concluded in plaintiff’s favor). 4 Here, Plaintiff alleges that Defendant Ramirez provided false testimony during his 5 criminal preliminary hearing. Success on this claim would necessarily imply the invalidity of any 6 criminal conviction arising from the same proceedings. Plaintiff has not alleged any facts to 7 indicate that the conviction has been set aside or otherwise invalidated. Plaintiff will be provided 8 an opportunity to amend. 9 Because it is possible that the deficiencies identified in this order may be cured by 10 amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the entire 11 action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is 12 informed that, as a general rule, an amended complaint supersedes the original complaint. See 13 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to 14 amend, all claims alleged in the original complaint which are not alleged in the amended 15 complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if 16 Plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make 17 Plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be 18 complete in itself without reference to any prior pleading. See id. 19 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the 20 conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See 21 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how 22 each named defendant is involved and must set forth some affirmative link or connection between 23 each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167 24 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 25 Finally, Plaintiff is warned that failure to file an amended complaint within the 26 time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 27 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply 28 with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b). 1 | See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiffs original complaint is dismissed with leave to amend; and 4 2. Plaintiff shall file a first amended complaint within 30 days of the date of 5 || service of this order. 6 7 || Dated: September 10, 2024 Svc 8 DENNIS M. COTA 9 UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28