(PC) Herrera v. Gardner et al, No. 2:2010cv01744 - Document 14 (E.D. Cal. 2010)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/18/10 ORDERING plaintif's request to proceed in forma pauperis 6 is granted. Plaintiff shall pay the statutory filing fee of $350.00 for this actio n. All fees shall be collected in accordance with the court's CDC order filed concurrently herewith. Plaintiff's request not to be housed in administrative segregation 7 is denied. The complaint is dismissed with leave to amend within 30 days. Also, RECOMMENDING that plaintiff's motion for a temporary restraining order 8 be denied. Motion for Temporary Restraining Order 8 referred to Judge Garland E. Burrell. Objections due within 21 days.(Plummer, M)
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(PC) Herrera v. Gardner et al Doc. 14 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ARMANDO HERRERA, 11 Plaintiff, 12 vs. 13 No. CIV S-10-1744 EFB P GARDNER, et al., ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 14 / 15 Armando Herrera, an inmate confined at California Medical Facility, filed this pro se 16 17 civil rights action under 42 U.S.C. § 1983. In addition to filing a complaint, he has filed an 18 application to proceed in forma pauperis, two letters, and a motion for a temporary restraining 19 order against CDCR staff. See Dckt. Nos. 2, 6-9. This proceeding was referred to this court by 20 Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 21 I. Request to Proceed In Forma Pauperis 22 Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 23 Dckt. No. 2. Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and 24 (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to 25 collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 26 § 1915(b)(1) and (2). 1 Dockets.Justia.com 1 2 II. Screening Order Pursuant to 28 U.S.C. § 1915A, the court shall review “a complaint in a civil action in 3 which a prisoner seeks redress from a governmental entity or officer or employee of a 4 governmental entity.” 28 U.S.C. § 1915A(a). “On review, the court shall identify cognizable 5 claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, 6 malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief 7 from a defendant who is immune from such relief.” Id. § 1915A(b). 8 9 A district court must construe a pro se pleading “liberally” to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an 10 opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While 11 detailed factual allegations are not required, “[t]hreadbare recitals of the elements of a cause of 12 action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 13 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff 14 must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is 15 plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). 16 17 18 19 A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. 20 Id. (citations and quotation marks omitted). Although legal conclusions can provide the 21 framework of a complaint, they must be supported by factual allegations, and are not entitled to 22 the assumption of truth. Id. at 1950. 23 The Civil Rights Act under which this action was filed provides: 24 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 . . . . 25 26 2 1 42 U.S.C. § 1983. An individual defendant is not liable on a civil rights claim unless the facts 2 establish the defendant’s personal involvement in the constitutional deprivation or a causal 3 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation. 4 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 5 (9th Cir. 1978). 6 The court has reviewed plaintiff’s complaint pursuant to 28 U.S.C. § 1915A and finds it 7 does not state a cognizable claim. Plaintiff’s complaint states that in 2006 he had a parole 8 hearing and was denied parole for five years, so that the next hearing would be in 2011. Compl., 9 Dckt. No. 1 at 3. He claims that in 2009 the board of parole terms held a hearing without him 10 being there. He asks that he be granted a parole date and released. As discussed below, a 11 challenged to the parole determination may not be asserted by way of § 1983 claim. 12 Plaintiff’s claims challenge the validity of his current incarceration. Such a claim might 13 properly be brought in a habeas petition, but not in this § 1983 action. The Supreme Court has 14 held that “a state prisoner’s § 1983 action is barred (absent prior invalidation)--no matter the 15 relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state 16 conduct leading to conviction or internal prison proceedings)--if success in that action would 17 necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 18 U.S. 74, 81-82 (2005) (emphasis added); see also Edwards v. Balisok, 520 U.S. 641 (1997); 19 Heck v. Humphrey, 512 U.S. 477 (1994). Were plaintiff to succeed on his claims that his parole 20 hearing was conducted unconstitutionally, those findings would necessarily implicate the 21 validity of plaintiff’s sentence and current incarceration. See Heck, 512 U.S. at 487. Plaintiff 22 has not demonstrated that his sentence and/or release date has previously been invalidated. 23 Thus, his complaint does not state a claim for relief and must be dismissed. 24 Plaintiff also seeks a temporary restraining order (“TRO”). The standards for a TRO are 25 essentially the same as that for a preliminary injunction. To be entitled to preliminary injunctive 26 relief, a party must demonstrate “that he is likely to succeed on the merits, that he is likely to 3 1 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 2 favor, and that an injunction is in the public interest.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 3 1127 (9th Cir. 2009), citing Winter v. Natural Res. Def. Council, Inc., __ U.S. __, 129 S.Ct. 365, 4 374 (2008). The Ninth Circuit has also held that the “sliding scale” approach it applies to 5 preliminary injunctions as it relates to the showing a plaintiff must make regarding his chances 6 of success on the merits survives Winter and continues to be valid. Alliance for Wild Rockies v. 7 Cottrell, __ F.3d __, 2010 WL 3665149, *8 (amended September 28, 2010). Under this sliding 8 scale the elements of the preliminary injunction test are balanced. As it relates to the merits 9 analysis, a stronger showing of irreparable harm to plaintiff might offset a lesser showing of 10 11 likelihood of success on the merits. Id. In cases brought by prisoners involving conditions of confinement, any preliminary 12 injunction “must be narrowly drawn, extend no further than necessary to correct the harm the 13 court finds requires preliminary relief, and be the least intrusive means necessary to correct the 14 harm.” 18 U.S.C. § 3626(a)(2). 15 In this case, plaintiff has not met these requirements. His letters and motion state that his 16 brother is a drop-out from a prison gang and that because of this he has been threatened by 17 another inmate. He states that he requested protection from the prison staff, but that Sgt. Vierra 18 said that he would not help plaintiff because plaintiff had filed a civil action against CDCR board 19 members in Sacramento. He also states that Doctor Norrise told him that the correctional 20 officers were planning to put someone violent in his cell so that they would beat him up. 21 Plaintiff requests help from the court. But the issues raised in this motion do not appear to relate 22 in any way to the issues raised in his complaint challenging the denial of parole. Thus, he has 23 not in any way shown a likelihood of success on the merits of his complaint or even that serious 24 questions have been raised. 25 26 However, unlike his attempt to challenge a denial of parole, the allegations contained in plaintiff’s letters and pleadings may form the basis for a civil rights claim. Thus, to proceed, 4 1 plaintiff must file an amended complaint. Any parole challenge must be presented in a proper 2 habeas petition. Any attempt to litigate his allegations regarding the conditions of his 3 confinement must be presented in a properly filed § 1983 claim. 4 Any amended complaint must adhere to the following requirements: 5 It must be complete in itself without reference to any prior pleading. E.D. Cal. Local 6 Rule 220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended 7 complaint, the original pleading is superseded. 8 9 It must show that the federal court has jurisdiction and that plaintiff’s action is brought in the right place, that plaintiff is entitled to relief if plaintiff’s allegations are true, and must 10 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 11 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 12 Johnson, 588 F.2d at 743 (a person subjects another to the deprivation of a constitutional right if 13 he does an act, participates in another’s act or omits to perform an act he is legally required to do 14 that causes the alleged deprivation). 15 16 17 It must contain a caption including the name of the court and the names of all parties. Fed. R. Civ. P. 10(a). Plaintiff may join multiple claims if they are all against a single defendant. Fed. R. Civ. 18 P. 18(a). If plaintiff has more than one claim based upon separate transactions or occurrences, 19 the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). Plaintiff may join 20 multiple claims if they are all against a single defendant. Fed. R. Civ. P. 18(a). Unrelated claims 21 against different defendants must be pursued in multiple lawsuits. “The controlling principle 22 appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim . . . may join, [] as independent or as 23 alternate claims, as many claims . . . as the party has against an opposing party.’ Thus multiple 24 claims against a single party are fine, but Claim A against Defendant 1 should not be joined with 25 unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in 26 different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit 5 1 produce[s], but also to ensure that prisoners pay the required filing fees-for the Prison Litigation 2 Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file 3 without prepayment of the required fees. 28 U.S.C. § 1915(g).” George v. Smith, 507 F.3d 605, 4 607 (7th Cir. 2007); see also Fed. R. Civ. P. 20(a)(2) (joinder of defendants not permitted unless 5 both commonality and same transaction requirements are satisfied). Plaintiff may not change the 6 nature of this suit by alleging new, unrelated claims in an amended complaint. George, 507 F.3d 7 at 607 (no “buckshot” complaints). 8 The allegations must be short and plain, simple and direct and describe the relief plaintiff 9 seeks. Fed. R. Civ. P. 8(a); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Galbraith v. 10 County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002). A long, rambling pleading, 11 including many defendants with unexplained, tenuous or implausible connection to the alleged 12 constitutional injury or joining a series of unrelated claims against many defendants very likely 13 will result in delaying the review required by 28 U.S.C. § 1915 and an order dismissing 14 plaintiff’s action pursuant to Rule 41 of the Federal Rules of Civil Procedure for violation of 15 these instructions. 16 Plaintiff must sign the complaint. Fed. R. Civ. P. 11(a). By signing an amended 17 complaint, plaintiff certifies he has made reasonable inquiry and has evidentiary support for his 18 allegations and that for violation of this rule the court may impose sanctions sufficient to deter 19 repetition by plaintiff or others. Fed. R. Civ. P. 11. 20 A prisoner may bring no § 1983 action until he has exhausted such administrative 21 remedies as are available to him. 42 U.S.C. § 1997e(a). The requirement is mandatory. Booth 22 v. Churner, 532 U.S. 731, 741 (2001). By signing an amended complaint plaintiff certifies his 23 claims are warranted by existing law, including the law that he exhaust administrative remedies, 24 and that for violation of this rule plaintiff risks dismissal of his entire action. 25 //// 26 //// 6 1 Accordingly, the court hereby ORDERS that: 2 1. Plaintiff’s request to proceed in forma pauperis is granted. 3 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in 4 accordance with the notice to the Director of the California Department of Corrections and 5 Rehabilitation filed concurrently herewith. 6 7 8 9 3. Plaintiff’s request not to be housed in administrative segregation is denied. See Dckt. No. 7. 4. The complaint is dismissed with leave to amend within 30 days. The amended complaint must bear the docket number assigned to this case and be titled “First Amended 10 Complaint.” Failure to comply with this order will result in a recommendation that this action be 11 dismissed. If plaintiff files an amended complaint stating a cognizable claim the court will 12 proceed with service of process by the United States Marshal. 13 5. The Clerk is directed to randomly assign a district judge to this case. 14 Further, it is hereby RECOMMENDED that plaintiff’s motion for a temporary 15 16 restraining order, Dckt. No. 8, be denied. These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one 18 days after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 21 within the specified time may waive the right to appeal the District Court’s order. Turner v. 22 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 Dated: October 18, 2010. 24 25 26 7
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