(PC) Bodnar v. Clendenin et al, No. 2:2018cv02702 - Document 11 (E.D. Cal. 2019)
Court Description: ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 7/24/19 GRANTING Plaintiff's request to proceed in forma pauperis 8 ; and DIRECTING the Clerk randomly assign a United States District Judge to this case. RECOMMENDING that this action be dismissed pursuant to 28 U.S.C. § 1915(e)(2). Referred to Judge Kimberly J. Mueller; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)
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(PC) Bodnar v. Clendenin et al Doc. 11 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 THOMAS BODNAR, 11 Plaintiff, 12 13 No. 2:18-cv-2702-EFB P v. ORDER AND FINDINGS AND RECOMMENDATIONS STEPHANIE CLENDENIN, et al., 14 Defendants. 15 16 Plaintiff, a former state prisoner and now a civil detainee, is proceeding without counsel in 17 an action brought under 42 U.S.C. § 1983.1 He has filed an application to proceed in forma 18 pauperis (ECF No. 8). In Forma Pauperis Application 19 20 Plaintiff has submitted the affidavit required by 28 U.S.C. § 1915(a) showing that he is 21 unable to prepay fees and costs or give security therefor. Accordingly, the request to proceed in 22 forma pauperis will be granted. Screening Requirement 23 24 Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case at any time if 25 it determines the allegation of poverty is untrue, or if the action is frivolous or malicious, fails to 26 27 28 1 Individuals detained pursuant to California Welfare and Institutions Code §§ 6600 et seq. are civil detainees and are not prisoners within the meaning of the Prison Litigation Reform Act. Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000). 1 Dockets.Justia.com 1 state a claim on which relief may be granted, or seeks monetary relief against an immune 2 defendant. 3 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 4 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 5 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 6 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 8 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 9 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 10 U.S. 662, 679 (2009). 11 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 12 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 13 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 14 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 15 678. 16 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 17 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 18 content that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 20 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 21 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 22 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 23 Screening Order 24 Plaintiff is a civil detainee at Coalinga State Hospital. He is detained as a sexually violent 25 predator (“SVP”) under California’s Sexually Violent Predator Act (“SVPA”), California Welfare 26 and Institutions Code, section 6600 et seq. ECF No. 1 at 3. On April 20, 2017, Dr. Coles and 27 Dr. Miculian each updated their evaluations of plaintiff as an SVP. Id. Both found that plaintiff 28 ///// 2 1 met the criteria as an SVP and recommended his placement in a confined facility for treatment. 2 Id. Plaintiff claims a loss of liberty without due process and seeks damages as relief. Id. at 24. 3 Plaintiff names nine defendants, alleging as follows: Defendants Coles and Miculian’s 4 reports relied on inadmissible hearsay. Id. at 4. Defendants Clendenin and Edens are 5 “responsible for the deficient policies, protocols and customs and practices within the State 6 Hospitals that is or does cause constitutional violations.” Id. Defendants Aguilar, Rokop, 7 Houston, and DiCiro caused the state evaluators’ reports to be “out of compliance.” Id. at 5-6. 8 Defendant Whiting caused the evaluation protocol to be outdated, thereby violating the due 9 process rights of those who are subjected to evaluations. Id. at 7. 10 Plaintiff’s challenge to his updated evaluations and resulting loss of liberty under the 11 SVPA is not cognizable in this § 1983 action because it is barred by the rule announced in Heck 12 v. Humphrey, 512 U.S. 477 (1994). Heck holds that if success in a section 1983 action would 13 implicitly question the validity of confinement or its duration, the plaintiff must first show that 14 the underlying conviction was reversed on direct appeal, expunged by executive order, declared 15 invalid by a state tribunal, or questioned by the grant of a writ of habeas corpus. Muhammad v. 16 Close, 540 U.S. 749, 751 (2004); see also Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1139-41 17 (9th Cir. 2005) (applying Heck to SVPA civil commitment). If plaintiff were successful in this 18 action, it would call into question the validity of his continued confinement under the SVPA. 19 Because plaintiff’s order of confinement has not been reversed, expunged, or declared invalid, his 20 damages claims are barred by Heck. 21 For this reason, the court finds that plaintiff’s complaint must be dismissed without leave 22 to amend. See Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009); Silva v. Di Vittorio, 658 23 F.3d 1090, 1105 (9th Cir. 2011) (“Dismissal of a pro se complaint without leave to amend is 24 proper only if it is absolutely clear that the deficiencies of the complaint could not be cured by 25 amendment.” (internal quotation marks omitted)); Doe v. United States, 58 F.3d 494, 497 (9th 26 Cir. 1995) (“[A] district court should grant leave to amend even if no request to amend the 27 pleading was made, unless it determines that the pleading could not be cured by the allegation of 28 other facts.”). 3 1 Accordingly, IT IS ORDERED that: 2 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 8) is granted; and 3 2. The Clerk is directed to randomly assign a United States District Judge to this case. 4 Further, IT IS RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. 5 § 1915(e)(2). 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 8 after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 11 within the specified time may waive the right to appeal the District Court’s order. Turner v. 12 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 DATED: July 24, 2019. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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