Asberry v. Cate et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 11/8/2011 ORDERING that pltf's 2 request to proceed IFP is GRANTED; pltf to pay the $350.00 filing fee with an initial partial filing fee in accordance w/ the concurrent CDC order; pltf's complaint is DISMISSED; within 30 days, pltf to complete and return the Notice of Amendment with the required documents; and pltf's 3 motion for appointment of counsel is DENIED. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TONY ASBERRY,
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Plaintiff,
No. 2: 11-cv-2462 KJM KJN P
vs.
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MATTHEW CATE, et al.,
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Defendants.
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ORDER
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Plaintiff is a state prisoner and is proceeding without counsel. Plaintiff seeks
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relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis
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pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C.
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§ 636(b)(1) and Local Rule 302.
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Plaintiff has submitted a declaration that makes the showing required by
28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action.
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28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing
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fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court
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will direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust
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account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make
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monthly payments of twenty percent of the preceding month’s income credited to plaintiff’s
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prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of
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the Court each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid
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in full. 28 U.S.C. § 1915(b)(2).
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The court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised
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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be
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granted, or that seek monetary relief from a defendant who is immune from such relief.
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28 U.S.C. § 1915A(b)(1),(2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28
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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an
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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
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Cir. 1989); Franklin, 745 F.2d at 1227.
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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and
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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic
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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
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(1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more
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than “a formulaic recitation of the elements of a cause of action;” it must contain factual
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allegations sufficient “to raise a right to relief above the speculative level.” Id. However,
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“[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair
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notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551
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U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal
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quotations marks omitted). In reviewing a complaint under this standard, the court must accept
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as true the allegations of the complaint in question, id., and construe the pleading in the light
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most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
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The complaint names 24 defendants, 24 causes of action, and is 59 pages long.
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Federal Rule of Civil Procedure 8(a) requires that pleadings contain short and plain claims for
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relief. Plaintiff complaint does not comply with Rule 8(a) as it is clear that plaintiff may state his
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claims in a substantially shorter complaint. In addition, plaintiff has attached 141 pages of
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exhibits to his complaint. Plaintiff is not required to attach exhibits to the amended complaint.
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Plaintiff may also not rely on exhibits to state his claims. In other words, the amended complaint
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must contain a short and plain statement of plaintiff’s claims. Plaintiff’s amended complaint may
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be no longer than 25 pages to be in compliance with Federal Rule of Civil Procedure Rule 8(a).
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The undersigned also observes that the complaint contains no allegations against
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seven of the named defendants (Cate, Virga, Durango, Shane, Wong, O’Brien and Guzman).
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The complaint also contains allegations against several other individuals who plaintiff identifies
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as defendants (Wray, Barbour, Duc), but who are not listed as defendants in the section of the
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complaint titled “Parties.” If plaintiff files an amended complaint, he must clearly identify the
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defendants and link each named defendant to an alleged deprivation.
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In part, plaintiff alleges that his right to due process was violated by the
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mishandling of several of his administrative appeals. Prisoners have no separate constitutional
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entitlement to a specific grievance procedure. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
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2003). If plaintiff files an amended complaint, he should not include claims alleging due process
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violations in connection with the processing of his administrative grievances.
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Plaintiff also alleges that he was denied due process during disciplinary
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proceedings following which he was assessed 360 days of time credits.
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In Heck v. Humphrey, 512 U.S. 477 (1994), an Indiana state prisoner brought a
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civil rights action under § 1983 for damages. Claiming that state and county officials violated his
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constitutional rights, he sought damages for improprieties in the investigation leading to his
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arrest, for the destruction of evidence, and for conduct during his trial (“illegal and unlawful
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voice identification procedure”). Convicted on voluntary manslaughter charges, and serving a
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fifteen year term, plaintiff did not seek injunctive relief or release from custody. The United
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States Supreme Court affirmed the Court of Appeal’s dismissal of the complaint and held that:
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in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance
of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under 1983.
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Heck, 512 U.S. at 486 The Court expressly held that a cause of action for damages under § 1983
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concerning a criminal conviction or sentence cannot exist unless the conviction or sentence has
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been invalidated, expunged or reversed. Id.
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In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court held that Heck
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applies to challenges to prison disciplinary hearings when the nature of the challenge to the
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procedures could be such as necessarily to imply the invalidity of the judgment. Edwards
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rejected the Ninth Circuit’s holding in Gotcher v. Wood, 66 F.3d 1097, 1099 (9th Cir. 1995), that
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a claim challenging only the procedures employed in a disciplinary hearing is not barred by Heck.
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Plaintiff’s claims alleging due process violations in connections with prison
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disciplinary proceedings are most likely barred unless the disciplinary conviction has been
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invalidated, expunged or reversed. Plaintiff should keep these legal standards in mind when
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preparing an amended complaint, if any.
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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the
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conditions about which he complains resulted in a deprivation of plaintiff’s constitutional rights.
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Rizzo v. Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms
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how each named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983
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unless there is some affirmative link or connection between a defendant’s actions and the
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claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy,
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588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official
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participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266,
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268 (9th Cir. 1982).
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In addition, plaintiff is hereby informed that the court cannot refer to a prior
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pleading in order to make plaintiff’s amended complaint complete. Local Rule 220 requires that
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an amended complaint be complete in itself without reference to any prior pleading. This
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requirement exists because, as a general rule, an amended complaint supersedes the original
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complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended
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complaint, the original pleading no longer serves any function in the case. Therefore, in an
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amended complaint, as in an original complaint, each claim and the involvement of each
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defendant must be sufficiently alleged.
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Plaintiff has requested the appointment of counsel. The United States Supreme
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Court has ruled that district courts lack authority to require counsel to represent indigent
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prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In
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certain exceptional circumstances, the court may request the voluntary assistance of counsel
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pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);
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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court
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does not find the required exceptional circumstances. Therefore, plaintiff’s request for the
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appointment of counsel is denied.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s request for leave to proceed in forma pauperis (Dkt. No. 2) is
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granted.
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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.
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Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.
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§ 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the
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Director of the California Department of Corrections and Rehabilitation filed concurrently
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herewith.
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3. Plaintiff’s complaint is dismissed.
4. Within thirty days from the date of this order, plaintiff shall complete the
attached Notice of Amendment and submit the following documents to the court:
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a. The completed Notice of Amendment; and
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b. An original and one copy of the Amended Complaint.
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Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the
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Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must
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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”
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The amended complaint may be no longer than 25 pages. Failure to file an amended complaint
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in accordance with this order may result in the dismissal of this action.
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5. Plaintiff’s motion for appointment of counsel (Dkt. No. 3) is denied.
DATED: November 8, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TONY ASBERRY,
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Plaintiff,
No. 2: 11-cv-2462 KJM KJN P
vs.
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MATTHEW CATE, et al.,
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Defendants.
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____________________________________/
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Plaintiff hereby submits the following document in compliance with the court's
order filed
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NOTICE OF AMENDMENT
:
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Amended Complaint
DATED:
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Plaintiff
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