-DAD (PC) Decker v. Wilkinson et al, No. 2:2011cv00667 - Document 9 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 7/19/11 RECOMMENDING that 3 MOTION to PROCEED IN FORMA PAUPERIS be denied; and this action be dismissed without prejudice; 1 Prisoner Civil Rights Complaint referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Dillon, M)
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-DAD (PC) Decker v. Wilkinson et al Doc. 9 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KEVIN L. DECKER, 11 12 13 14 Plaintiff, No. CIV S-11-0667 JAM DAD P vs. W. WILKINSON et al., Defendants. 15 FINDINGS AND RECOMMENDATIONS / 16 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 17 U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. 18 This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 19 302 and 28 U.S.C. § 636(b)(1). 20 21 SCREENING REQUIREMENT The court is required to screen complaints brought by prisoners seeking relief 22 against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. 23 § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised 24 claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 25 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 26 U.S.C. § 1915A(b)(1) & (2). 1 Dockets.Justia.com 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 3 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 6 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 7 Cir. 1989); Franklin, 745 F.2d at 1227. 8 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and 9 plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 10 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 11 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 12 (1957)). However, in order to survive dismissal for failure to state a claim a complaint must 13 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 14 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 15 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 16 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 17 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 18 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 19 The Civil Rights Act under which this action was filed provides as follows: 20 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. 21 22 23 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 24 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 25 Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 26 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 2 1 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 2 omits to perform an act which he is legally required to do that causes the deprivation of which 3 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 4 Moreover, supervisory personnel are generally not liable under § 1983 for the 5 actions of their employees under a theory of respondeat superior and, therefore, when a named 6 defendant holds a supervisorial position, the causal link between him and the claimed 7 constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 8 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory 9 allegations concerning the involvement of official personnel in civil rights violations are not 10 11 12 sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). PLAINTIFF’S COMPLAINT In the present case, plaintiff has named his parole agent, his parole agent’s 13 supervisor, and the California Department of Corrections and Rehabilitation as the defendants. 14 Plaintiff alleges that he was released on parole on April 10, 2010, and reported to his state parole 15 agent on April 12, 2010. According to plaintiff, his parole agent refused to provide him with any 16 help with housing even though plaintiff is disabled and a transient § 290 parolee. Plaintiff’s 17 parole agent also allegedly knew that plaintiff was not in compliance with his residential 18 restrictions but waited to have him arrested for a felony offense instead of for a mere parole 19 violation. In terms of relief, plaintiff seeks judgment for malicious prosecution, false arrest, and 20 pain and suffering. (Compl. at 3.) 21 22 DISCUSSION A civil rights action is the proper mechanism for a prisoner seeking to challenge 23 the conditions of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). In contrast, 24 habeas corpus proceedings are the proper mechanism for a prisoner seeking to challenge the fact 25 or duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Here, plaintiff 26 claims that the defendants’ conduct resulted in him being convicted of a felony offense in state 3 1 court. However, plaintiff has not indicated that the challenged felony conviction has been 2 overturned or otherwise invalidated. 3 Under these circumstances, the court cannot allow plaintiff to proceed in this civil 4 rights action. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (“a state prisoner’s § 1983 5 action is barred (absent prior invalidation) - no matter the relief sought (damages or equitable 6 relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal 7 prison proceedings) - if success in that action would necessarily demonstrate the invalidity of 8 confinement or its duration.”) (emphasis in original); Heck v. Humphrey, 512 U.S. 477 (1994) (a 9 state prisoner may not recover damages under § 1983 for allegedly unconstitutional 10 imprisonment, or for any other harm caused by “actions whose unlawfulness would render the 11 imprisonment invalid,” unless he can prove that the conviction or other basis for confinement has 12 been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal 13 authorized to make such a determination, or called into question by a federal court’s issuance of a 14 writ of habeas corpus). Although the allegations of plaintiff’s complaint are vague and 15 conclusory, the court finds that the complaint necessarily implicates the validity of plaintiff’s 16 current confinement. Plaintiff is advised that a writ of habeas corpus is his sole remedy by which 17 to attack in federal court his state court criminal conviction and sentence, and that remedy may be 18 pursued only after he has properly exhausted all of his constitutional claims in state court. 19 CONCLUSION 20 IT IS HEREBY RECOMMENDED that: 21 1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 3) be denied; and 22 2. This action be dismissed without prejudice. 23 These findings and recommendations are submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 25 days after being served with these findings and recommendations, plaintiff may file written 26 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 4 1 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 2 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 3 F.2d 1153 (9th Cir. 1991). 4 DATED: July 19, 2011. 5 6 7 DAD:9 deck0667.56 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5
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