Akers v. Labson-Freeman ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MONTGOMERY CARL AKERS, Case No. 23-cv-04221-JSC 8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 9 v. TO AMEND 10 BETH LABSON-FREEMAN, et al., Defendants. 11 12 INTRODUCTION 13 Plaintiff, a federal prisoner who is proceeding without representation by an attorney, filed 14 this civil rights complaint against two judges of this court, Judge Beth Labson-Freeman and Judge 15 Edward Chen, and a prosecutor employed by the United States Department of Justice, Katherine 16 Siereveld. He claims they violated his Eighth Amendment rights by conspiring to subject him to 17 torturous conditions in federal prison.1 Plaintiff’s application to proceed in forma pauperis is 18 granted in a separate order. For the reasons explained below, the complaint is dismissed with 19 leave to amend. 20 STANDARD OF REVIEW 21 Federal courts must engage in a preliminary screening of cases in which prisoners seek 22 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 23 1915A(a). The Court must identify actionable claims or dismiss the complaint, or any portion of 24 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 25 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 26 § 1915A(b). Pleadings filed by self-represented litigants must be liberally construed. Balistreri v. 27 1 Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 2 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 3 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 4 statement need only give the defendant fair notice of what the . . . . claim is and the grounds upon 5 which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although to state 6 a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to 7 provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a 8 formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must 9 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 10 550 U.S. 544, 555 (citations omitted). A complaint must proffer “enough facts to state a claim for 11 relief that is plausible on its face.” Id. at 570. 12 The Supreme Court has held a private right of action for damages may be implied from the 13 Constitution itself for constitutional violations by federal employees or their agents. See Bivens v. 14 Six Unknown Federal Narcotics Agents, 403 U.S. 388, 392-97 (1971) (4th Amendment 15 unreasonable search and seizure); Davis v. Passman, 442 U.S. 228, 248-49 (1979) (5th 16 Amendment Due Process Clause gender discrimination); Carlson v. Green, 446 U.S. 14, 17-19 17 (1980) (8th Amendment inadequate medical treatment). Except for the replacement of a state 18 actor by a federal actor, actions under 42 U.S.C. § 1983 and Bivens are identical. Martin v. Sias, 19 88 F.3d 774, 775 (9th Cir. 1996). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege 20 two elements: (1) that a right secured by the Constitution or laws of the United States was 21 violated, and (2) that the alleged violation was committed by a person acting under the color of 22 state law. West v. Atkins, 487 U.S. 42, 48 (1988). 23 LEGAL CLAIMS 24 Plaintiff claims Defendants conspired to violate his Eighth Amendment rights by 25 subjecting him to “physical and psychological torture,” insufficient food, and inadequate medical 26 care. (ECF No. 1 at 5, 7-8.) He alleges on approximately November 22, 2022, Defendant 27 Siereveld told Judge Freeman ex parte in Case No. 22-5555 BLF, that she, Judge Chen, and 1 1 at 6-7.) He further alleges Siereveld told the Defendants Plaintiff “has been placed in a secret 2 confinement facility for terrorists in order to serve his time under the rogors (sic) of torture.” (Id. 3 at 7.) 4 The Court is not aware of any authority, nor does Plaintiff cite any, that the alleged ex 5 parte communications themselves violate the Eighth Amendment. To whatever extent such 6 communications violate any of the Federal Rules of Civil Procedure or local rules, moreover, the 7 Court is aware of no authority that there is a private right of action under such rules. 8 Plaintiff alleges several inhumane prison conditions, which may violate the Eighth 9 Amendment. See Farmer v. Brennan, 511 U.S. 825, 832 (1994) (prison officials violate the 10 Eighth Amendment when two requirements are met: (1) the deprivation alleged must be, 11 objectively, sufficiently serious, and (2) the prison official possesses a sufficiently culpable state 12 of mind). However, Plaintiff’s allegations that Defendants conspired to cause him to suffer such 13 conditions are conclusory, at best. The only alleged actions by Defendants are the ex parte 14 communications, but Plaintiff does not allege how those communications may have caused him to 15 suffer inhumane prison conditions or any other violation of his Eighth Amendment rights. To 16 whatever extent Plaintiff means to claim any rulings by Judges Freeman or Chen violated his 17 rights, such allegations are inadequate because federal judges are absolutely immune from civil 18 liability for actions taken in the course of their official duties, including making rulings in their 19 cases. See Moore v. Brewster, 96 F.3d 1240, 1243 (9th Cir. 1996). Simply claiming Defendants 20 conspired to violate his Eighth Amendment rights and alleging inhumane prison conditions, 21 without also alleging the actions Defendants took that caused the Eighth Amendment violations, is 22 too conclusory to state a claim that is capable of judicial review and determination. Accordingly, 23 the claims must be dismissed. 24 Plaintiff may file an amended complaint in which he alleges, if he can do so in good faith, 25 conduct by each of the named Defendants that caused a violation of his Eighth Amendment rights. 26 CONCLUSION 27 For the reasons explained above, 1 amended complaint on or before September 30, 2023. The amended complaint must include the 2 caption and civil case number used in this order (No. C 23-4221 JSC (PR)) and the words 3 “COURT-ORDERED FIRST AMENDED COMPLAINT” on the first page. Because an amended 4 || complaint completely replaces the original complaint, see Ferdik vy. Bonzelet, 963 F.2d 1258, 1262 5 (9th Cir. 1992), Plaintiff may not incorporate material from the original by reference; he must 6 || include in his amended complaint all the claims he wishes to pursue, including the claims against 7 Defendant M. Avila. If Plaintiff fails to file an amended complaint within the designated time, or 8 || if the amendment is not sufficient, the case will be dismissed. 9 2. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court 10 || informed of any change of address by filing a separate paper with the clerk headed “Notice of 11 Change of Address.” He also must comply with the Court's orders in a timely fashion. Failure to 12 || do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 13 || Civil Procedure 41(b). Reasonable requests for an extension of a deadline will be allowed upon a 14 showing of good cause if the request is filed prior to the deadline. IT IS SO ORDERED. a 16 Dated: August 25, 2023 fe i Seth □ ne JAGQQUELINE SCOTT CORL 19 United States District Judge 20 21 22 23 24 25 26 27 28