(PC) Perez-Lopez v. Cox et al, No. 2:2010cv00353 - Document 9 (E.D. Cal. 2010)
Court Description: ORDER granting 8 Motion to Proceed IFP, signed by Magistrate Judge Kendall J. Newman on 4/23/10. Pltf is obligated to pay the $350.00 filing fee for this action. Pltf's complaint is DISMISSED. Within 30 days from the date of this order, pltf shall complete the attached Notice of Amendment and submit the required documents to the court. (Kastilahn, A)
Download PDF
<![CDATA[
(PC) Perez-Lopez v. Cox 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 JAVIER PEREZ-LOPEZ, 11 12 13 14 Plaintiff, No. 2:10-cv-0353 KJN P Defendants. ORDER vs. COX. et al., 15 16 / Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief 17 pursuant to 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 18 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) 19 and Local Rule 302. 20 21 22 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. 23 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing 24 fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court 25 will direct the appropriate agency to collect the initial partial filing fee from plaintiff’s prison 26 trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to 1 Dockets.Justia.com 1 make monthly payments of twenty percent of the preceding month’s income credited to 2 plaintiff’s prison trust account. These payments will be forwarded by the appropriate agency to 3 the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the filing 4 fee is paid in full. 28 U.S.C. § 1915(b)(2). 5 The court is required to screen complaints brought by prisoners seeking relief 6 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 7 § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised 8 claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 9 granted, or that seek monetary relief from a defendant who is immune from such relief. 10 11 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. 12 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 13 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 14 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 15 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 16 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 17 Cir. 1989); Franklin, 745 F.2d at 1227. 18 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and 19 plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 20 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 21 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 22 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more 23 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 24 allegations sufficient “to raise a right to relief above the speculative level.” Id. However, 25 “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair 26 notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 2 1 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal 2 quotations marks omitted). In reviewing a complaint under this standard, the court must accept 3 as true the allegations of the complaint in question, id., and construe the pleading in the light 4 most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 5 Plaintiff alleges that he received a Rules Violation Report for possession of a cell 6 phone and was later found guilty which resulted in a loss of privileges and a 30 day loss of time 7 credits. Plaintiff challenges the hearing and seeks punitive and compensatory damages. Plaintiff 8 has not indicated that he seeks return of the 30 day loss of time, yet the complaint must still be 9 dismissed for the reasons that follow. 10 In Heck v. Humphrey, 512 U.S. 477 (1994), an Indiana state prisoner brought a 11 civil rights action under § 1983 for damages. Claiming that state and county officials violated his 12 constitutional rights, he sought damages for improprieties in the investigation leading to his 13 arrest, for the destruction of evidence, and for conduct during his trial (“illegal and unlawful 14 voice identification procedure”). Convicted on voluntary manslaughter charges, and serving a 15 fifteen year term, plaintiff did not seek injunctive relief or release from custody. The United 16 States Supreme Court affirmed the Court of Appeal’s dismissal of the complaint and held that: 17 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. 18 19 20 21 22 23 Heck, 512 U.S. at 486. The Court expressly held that a cause of action for damages under § 1983 24 concerning a criminal conviction or sentence cannot exist unless the conviction or sentence has 25 been invalidated, expunged or reversed. Id. 26 //// 3 1 The Supreme Court has extended the Heck bar to § 1983 suits that would negate 2 prison disciplinary proceedings that affect good-time credits. Edwards v. Balisok, 520 U.S. 641, 3 648 (1997). A prisoner's challenge to a disciplinary hearing procedure is barred if judgment in 4 his favor would necessarily imply the invalidity of the resulting loss of good-time credits. Id. at 5 646. So, a “prisoner's § 1983 action is barred (absent prior invalidation)-no matter the relief 6 sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct 7 leading to conviction or internal prison proceedings )-if success in that action would necessarily 8 demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 9 81-82 (2005). 10 Plaintiff’s complaint will be dismissed and plaintiff will be given the opportunity 11 to file an amended complaint to provide more information to show if the prison disciplinary 12 charge has been expunged or overturned. 13 The court finds the allegations in plaintiff’s complaint so vague and conclusory 14 that it is unable to determine whether the current action is frivolous or fails to state a claim for 15 relief. The court has determined that the complaint does not contain a short and plain statement 16 as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading 17 policy, a complaint must give fair notice and state the elements of the claim plainly and 18 succinctly. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must 19 allege with at least some degree of particularity overt acts which defendants engaged in that 20 support plaintiffs claim. Id. Because plaintiff has failed to comply with the requirements of Fed. 21 R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file 22 an amended complaint. 23 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the 24 conditions about which he complains resulted in a deprivation of plaintiff’s constitutional rights. 25 Rizzo v. Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms 26 how each named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983 4 1 unless there is some affirmative link or connection between a defendant’s actions and the 2 claimed deprivation. Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 3 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official 4 participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 5 268 (9th Cir. 1982). 6 In addition, plaintiff is hereby informed that the court cannot refer to a prior 7 pleading in order to make plaintiff’s amended complaint complete. Local Rule 220 requires that 8 an amended complaint be complete in itself without reference to any prior pleading. This 9 requirement exists because, as a general rule, an amended complaint supersedes the original 10 complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended 11 complaint, the original pleading no longer serves any function in the case. Therefore, in an 12 amended complaint, as in an original complaint, each claim and the involvement of each 13 defendant must be sufficiently alleged. 14 In accordance with the above, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 16 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. 17 Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 18 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 19 Director of the California Department of Corrections and Rehabilitation filed concurrently 20 herewith. 21 3. Plaintiff’s complaint is dismissed. 22 4. Within thirty days from the date of this order, plaintiff shall complete the 23 attached Notice of Amendment and submit the following documents to the court: 24 a. The completed Notice of Amendment; and 25 b. An original and one copy of the Amended Complaint. 26 Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the 5 1 Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 2 also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 3 Failure to file an amended complaint in accordance with this order may result in the dismissal of 4 this action. 5 DATED: April 23, 2010 6 7 8 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 9 10 11 pere0353.14new 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JAVIER PEREZ-LOPEZ, 11 Plaintiff, No. 2:10-cv-0353 KJN P Defendant. NOTICE OF AMENDMENT vs. 12 13 COX. et al., 14 ____________________________________/ 15 Plaintiff hereby submits the following document in compliance with the court's 16 order filed : 17 ______________ Amended Complaint 18 DATED: 19 20 21 Plaintiff 22 23 24 25 26 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
