Hissong v. Tulare County, et al.
Filing
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FINDINGS and RECOMMENDATIONS Recommending that the Complaint be Dismissed with Leave to Amend 1 ; Directing Clerk to Provide Plaintiff with Habeas Corpus Petition; Denying Requests for Appointment of Counsel 16 , 19 , signed by Magistrate Judge Barbara A. McAuliffe on 11/14/11. Referred to Judge O'Neill. (Attachments: # 1 Amended Complaint Form, # 2 Petition Form)(Verduzco, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TIMOTHY EARL HISSONG, SR.
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CASE NO. CV F 11-1397 LJO BAM
Plaintiff,
ORDER RECOMMENDING THAT
THE COMPLAINT BE DISMISSED WITH
LEAVE TO AMEND
vs.
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DIRECTING CLERK TO PROVIDE PLAINTIFF
WITH HABEAS CORPUS PETITION
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KAWEAH DELTA HOSPITAL,
TULARE COUNTY, DEPARTMENT OF
CORRECTIONS,
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Defendants.
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DENYING REQUESTS FOR APPOINTMENT
OF COUNSEL
/
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Plaintiff, Timothy Earl Hissong, Sr., (“Plaintiff”) is a state prisoner who is currently proceeding
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pro se and in forma pauperis in a purported civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff
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filed his Complaint on August 22, 2011. (Doc. 1.)
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A.
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court
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must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous
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or malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary relief
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from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any
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filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time
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if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be
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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
Screening Requirement
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B.
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Plaintiff complains that Kaweah Delta breached a confidential relationship by calling the police
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on August 2001. In subsequent motions filed in this case, he also claims he has been confined after he
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has been found innocent by the courts. (Doc. 1.) Plaintiff has asked to be released from prison and
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adjudged acquitted. (Doc. 14, 20, 21.) The focus of plaintiff's claims and motions is his request to be
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released from prison.
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C.
Summary of Plaintiff’s Complaint
Pleading Requirements
1. Federal Rule of Civil Procedure 8(a)
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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited exceptions,”
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none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512
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(2002); Fed. R. Civ. Pro. 8(a). Pursuant to Rule 8(a), a complaint must contain “a short and plain
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statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a). “Such
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a statement must simply give the defendant fair notice of what the plaintiff’s claim is and the grounds
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upon which it rests.” Swierkiewicz, 534 U.S. at 512. However, “the liberal pleading standard . . .
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applies only to a plaintiff’s factual allegations.” Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). “[A]
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liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were
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not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting
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Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). “Notwithstanding any filing fee, or any
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portion thereof, that may have been paid, the court shall dismiss the case at any time if the court
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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted.” 28
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U.S.C. § 1915(e)(2)(B)(ii).
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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause
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of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
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129 S.Ct. 1937, 1949 (2009) quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on
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its face.’” Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555. While factual allegations are
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accepted as true, legal conclusion are not. Iqbal. at 1949; see also Moss v. U.S. Secret Service, 572 F.3d
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962, 969 (9th Cir. 2009); Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 556-557. “[P]laintiffs [now]
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face a higher burden of pleadings facts . . ,” Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), and
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while a plaintiff’s allegations are taken as true, courts “are not required to indulge unwarranted
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inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks
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and citation omitted).
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The Court will not guess as to which facts Plaintiff believes show any given constitutional
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violation(s). It is Plaintiff’s duty to correlate his claims for relief with their alleged factual basis. If
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Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the conditions complained of
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have resulted in a deprivation of Plaintiff's constitutional rights.
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2. Linkage Requirement
The Civil Rights Act under which this action was filed provides:
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Every person who, under color of [state law] . . . subjects, or causes to be
subjected, any citizen of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution . . . shall be
liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress.
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42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between the
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actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v.
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Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth
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Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional right, within the
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meaning of section 1983, if he does an affirmative act, participates in another’s affirmative acts or omits
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to perform an act which he is legally required to do that causes the deprivation of which complaint is
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made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In order to state a claim for relief under
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section 1983, Plaintiff must link each named defendant with some affirmative act or omission that
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demonstrates a violation of Plaintiff’s federal rights.
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3. Municipal Liability
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A local governmental unit may not be held responsible for the acts of its employees under a
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respondeat superior theory of liability. See Bd. of County Comm’rs v. Brown, 520 U.S. 397, 403 (1997);
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Collins v. City of Harker Heights, 503 U.S. 115, 121 (1992); City of Canton, Ohio v. Harris, 489 U.S.
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378, 385 (1989); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Fogel v. Collins, 531 F.3d
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824, 834 (9th Cir. 2008). Webb v. Sloan, 330 F.3d 1158, 1163-64 (9th Cir. 2003); Gibson v. County
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of Washoe, 290 F.3d 1175, 1185 (9th Cir. 2002). Rather, a local government unit may only be held
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liable if it inflicts the injury complained of. Gibson, 290 F.3d at 1185.
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Generally, a claim against a local government unit for municipal or county liability requires an
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allegation that “a deliberate policy, custom, or practice . . . was the ‘moving force’ behind the
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constitutional violation . . . suffered.” Galen v. County of Los Angeles, 477 F.3d 652, 667 (9th Cir.
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2007); City of Canton, Ohio, v. Harris, 489 U.S. 378, 385 (1989). Alternatively, and more difficult to
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prove, municipal liability may be imposed where the local government unit’s omission led to the
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constitutional violation by its employee. Gibson 290 F.3d at 1186. Under this route to municipal
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liability, the “plaintiff must show that the municipality’s deliberate indifference led to its omission and
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that the omission caused the employee to commit the constitutional violation.” Id. Deliberate
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indifference requires a showing “that the municipality was on actual or constructive notice that its
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omissions would likely result in a constitutional violation.” Id.
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Plaintiff’s claim is not cognizable as he does not state detailed allegations as to the Kaweah Delta
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policy, custom, or practice which he feels was the moving force behind any constitutional violation.
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Plaintiff merely alleges that Kaweah Delta called the police. While detailed factual allegations are not
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required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
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statements, do not suffice.” Iqbal, 129 S.Ct. 1949 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
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555 (2007)).
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Plaintiff may amend once as a matter of right before service of a responsive pleading by
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defendants. Fed. R. Civ. P. 15(a). Because Plaintiff has not previously amended his complaint and
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defendants have not filed a responsive pleading, Plaintiff may file an amended complaint. Plaintiff’s
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complaint must state factual support for the policy, custom or practice violated by Kaweah Delta.
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The focus of any potential claims against Tulare County and CDCR, as other persons named in
plaintiff's various motions, are for habeas corpus relief.
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D.
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Although Plaintiff’s complaint alleges a breach of confidentiality by Kaweah Delta District
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Hospital, he has also filed several motions complaining that he has already served his sentence and is
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now being held beyond his release date. These claims are directed at Tulare County and CDCR.
Claim for Habeas Corpus
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Plaintiff further claims he is actually innocent of his commitment offense. A habeas corpus petition is
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the correct method for a prisoner to challenge “the very fact or duration of his confinement,” and where
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“the relief he seeks is a determination that he is entitled to immediate release or a speedier release from
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that imprisonment.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973); Badea v. Cox, 931 F.2d 573, 574
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(9th Cir. 1991); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.
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Insofar as the contentions Petitioner’s raises in his motions challenge the “legality or duration” of his
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confinement, Badea, 931 F.2d at 574, quoting Preiser, 411 U.S. at 485, and he seeks immediate release,
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those claims are not properly brought in the instant complaint; they must be raised in a separate petition
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for writ of habeas corpus. Therefore, the Court will recommend that the Clerk of Court provide Plaintiff
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with the appropriate forms for filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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Petitioner is advised that if he seeks to challenge his current confinement or the underlying conviction,
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he must commence a new action by completing the form habeas petition and file it with the Court.
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E.
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In successive requests (Doc. 15, 19), plaintiff requests appointment of counsel.
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Plaintiff does not have a constitutional right to appointed counsel in this action (Rand v.
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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent
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plaintiff pursuant to Title 28 of the United States Code section 1915(e)(1). Mallard v. United States
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District Court for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). In
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certain exceptional circumstances, however, the Court may request the voluntary assistance of counsel
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pursuant to section 1915(e)(1). Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). In determining
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whether "exceptional circumstances exist, the district court must evaluate both the likelihood of success
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of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity
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of the legal issues involved." Id. (internal quotations & citations omitted).
Denial of Appointment of Counsel
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In the present case, the Court does not find the required exceptional circumstances. Even if it
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is assumed that Plaintiff is not well versed in the law and that he has made serious allegations which,
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if proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar cases
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almost daily. Further, at this early stage in the proceedings, the Court cannot make a determination that
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Plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the Court
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does not find that Plaintiff cannot adequately articulate his claims.
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Further requests for appointment of counsel will be denied summarily.
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Accordingly, IT IS HEREBY RECOMMENDED:
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1)
Plaintiff’s Complaint is dismissed, with leave to amend;
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2)
Within thirty (30) days from the date of service of this order, Plaintiff must either:
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a.
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this order, or
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b.
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File a first amended complaint curing the deficiencies identified by the Court in
Notify the Court in writing that he does not wish to file a first amended complaint
and wishes to proceed with a Habeas Corpus petition.
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The Clerk of Court be DIRECTED to send Plaintiff blank forms for filing a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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4)
Plaintiff’s Requests for Appointment of Counsel are DENIED. (Doc. 16, 19.)
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If Plaintiff fails to comply with this order, this action will be dismissed for failure to obey
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a court order and for failure to state a claim.
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These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days
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after being served with these Findings and Recommendations, the parties may file written objections
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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” The parties are advised that failure to file objections within the specified time may
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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
10c20k
November 14, 2011
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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