Nesbeth v. Obama et al, No. 3:2014cv02450 - Document 4 (S.D. Cal. 2014)
Court Description: ORDER granting 2 Motion for Leave to Proceed in forma pauperis, denying 3 Motion to Appoint Counsel, dismissing complaint without prejudice for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(b). Plaintiff is granted forty five days leave from the date this Order is filed in which to reopen the case by filing a Amended Complaint. Signed by Judge Larry Alan Burns on 11/12/14. (All non-registered users served via U.S. Mail Service)(kas)
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Nesbeth v. Obama et al Doc. 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 NEZIAH IGNATIUS NESBETH, Register #A047-575-127, Civil No. Plaintiff, 13 vs. 16 17 ORDER: (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS (ECF Doc. No. 2); 14 15 14cv2450 LAB (WVG) (2) DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL (ECF Doc. No. 3) BARACK OBAMA, et al., 18 AND 19 Defendants. 20 21 (3) SUA SPONTE DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 22 Neziah Igantius Nesbeth (“Plaintiff”), an immigration detainee at the San Diego 23 Correctional Facility in San Diego, California, has filed a civil rights complaint pursuant 24 to 42 U.S.C. § 1983 (ECF Doc. No. 1), together with a Motion to Proceed In Forma 25 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2) and a Motion to 26 Appoint Counsel (ECF Doc. No. 3). 27 /// 28 /// I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd 1 14cv2450 LAB (WVG) Dockets.Justia.com 1 I. Motion to Proceed IFP 2 All parties instituting any civil action, suit or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus must pay a filing fee of 4 $400.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 6 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 7 However, “[u]nlike other indigent litigants, prisoners proceeding IFP must pay the 8 full amount of filing fees in civil actions and appeals pursuant to the PLRA [Prison 9 Litigation Reform Act].” Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002). As 10 defined by the PLRA, a “prisoner” is “any person incarcerated or detained in any facility 11 who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations 12 of criminal law or the terms and conditions of parole, probation, pretrial release, or 13 diversionary program.” 28 U.S.C. § 1915(h). “[A]n alien detained by the INS pending 14 deportation is not a ‘prisoner’ within the meaning of the PLRA,” because deportation 15 proceedings are civil, rather than criminal in nature, and an alien detained pending 16 deportation has not necessarily been “accused of, convicted of, sentenced or adjudicated 17 delinquent for, a violation of criminal law.” Agyeman, 296 F.3d at 886. Thus, because 18 Plaintiff is not a “prisoner” as defined by 28 U.S.C. § 1915(h), and the filing fee 19 provisions of 28 U.S.C. § 1915(b) do not apply to him. 20 Accordingly, the Court has reviewed Plaintiff’s affidavit of assets and finds it is 21 sufficient to show that he is unable to pay the $400 filing fee or post securities required 22 to maintain a civil action. Therefore, Plaintiff’s Motion to Proceed IFP pursuant to 28 23 U.S.C. § 1915(a) (ECF Doc. No. 2) is GRANTED . 24 /// 25 /// 26 All parties filing civil actions on or after May 1, 2013, must pay the $350 civil filing fee, as well as an additional administrative fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule) (eff. May 1, 28 2013). However, the additional $50 administrative fee is waived if the plaintiff is granted leave to proceed IFP. Id. 1 27 I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd 2 14cv2450 LAB (WVG) 1 II. MOTION TO APPOINT COUNSEL Plaintiff also requests appointment of counsel in this matter. See Pl.’s Mot. for 2 3 Appoint. Counsel (ECF Doc. No. 3) at 1. The Constitution provides no right to 4 appointment of counsel in a civil case, however, unless an indigent litigant may lose his 5 physical liberty if he loses the litigation. Lassiter v. Dept. of Social Services, 452 U.S. 6 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are granted 7 discretion to appoint counsel for indigent persons. This discretion may be exercised only 8 under “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 9 1991). “A finding of exceptional circumstances requires an evaluation of both the 10 ‘likelihood of success on the merits and the ability of the plaintiff to articulate his claims 11 pro se in light of the complexity of the legal issues involved.’ Neither of these issues is 12 dispositive and both must be viewed together before reaching a decision.” Id. (quoting 13 Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 14 The Court denies Plaintiff’s request without prejudice, as neither the interests of 15 justice nor exceptional circumstances warrant appointment of counsel at this time. 16 LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017. 17 III. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 18 A. Standard of Review 19 Any complaint filed by any person proceeding IFP is subject to sua sponte 20 dismissal by the Court to the extent it contains claims which are frivolous, malicious, or 21 fail to state a claim upon which relief may be granted, or if it “seeks monetary relief from 22 a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); 23 Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the 24 provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 25 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits, but 26 requires a district court to dismiss an in forma pauperis complaint that fails to state a 27 claim.”). 28 /// I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd 3 14cv2450 LAB (WVG) 1 All complaints must contain “a short and plain statement of the claim showing that 2 the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual allegations are 3 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 4 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 5 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 6 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 7 requires the reviewing court to draw on its judicial experience and common sense.” Id. 8 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 9 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 10 “When there are well-pleaded factual allegations, a court should assume their 11 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 12 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 13 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 14 allegations of material fact and must construe those facts in the light most favorable to 15 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 16 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 17 However, while the court “ha[s] an obligation where the petitioner is pro se, 18 particularly in civil rights cases, to construe the pleadings liberally and to afford the 19 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 20 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not, in 21 so doing, “supply essential elements of claims that were not initially pled.” Ivey v. Board 22 of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 23 B. Plaintiff’s Allegations 24 Plaintiff’s Complaint contains very few specific factual allegations. Plaintiff 25 raises allegations of constitutional violations that range from his past incarceration in the 26 California Department of Corrections and Rehabilitation (“CDCR”), his immigration 27 proceedings, his criminal proceedings, past arrests, his detainment in the El Centro 28 Detention Facility, interactions with various employees of the United States Department I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd 4 14cv2450 LAB (WVG) 1 of Homeland Security (“DHS”) and his current detainment at the San Diego Correctional 2 Facility. 3 Plaintiff seeks damages, and invokes federal jurisdiction over his case pursuant 4 to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(a)(3). See Compl. at 1. However, because 5 some of his claims arose at the El Centro Detention Facility and the San Diego 6 Correctional Facility, which operates under contract with the Department of Homeland 7 Security’s Immigrations and Customs Enforcement division (“ICE”), and is managed by 8 CCA, a private corporation, to house ICE and U.S. Marshal Service detainees, the Court 9 liberally construes some of Plaintiff’s claims to arise under Bivens v. Six Unknown 10 Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). 11 Bivens established that “compensable injury to a constitutionally protected interest 12 [by federal officials alleged to have acted under color of federal law] could be vindicated 13 by a suit for damages invoking the general federal question jurisdiction of the federal 14 courts [pursuant to 28 U.S.C. § 1331].” Butz v. Economou, 438 U.S. 478, 486 (1978); 15 Western Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000) 16 (under Bivens, “federal courts have the inherent authority to award damages against 17 federal officials to compensate plaintiffs for violations of their constitutional rights.”). 18 To state a claim under Bivens, Plaintiff must allege that a person acting under 19 color of federal law deprived him of his constitutional rights. See Serra v. Lappin, 600 20 F.3d 1191, 1200 (9th Cir. 2010). Thus, the Ninth Circuit considers “[a]ctions under 21 § 1983 and those under Bivens [as] identical save for the replacement of a state actor 22 under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 23 (9th Cir. 1991); Hartman v. Moore, 547 U.S. 250, 254, 255 n.2 (2006) (a suit brought 24 pursuant to Bivens is the “federal analogue” to § 1983). 25 /// 26 /// 27 /// 28 /// I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd 5 14cv2450 LAB (WVG) 1 C. Department of Homeland Security 2 As a preliminary matter, the Court notes Plaintiff has included the “U.S. 3 DHS/ICE” as a Defendant in the caption of his Complaint (ECF Doc. No. 1 at 1). A 4 Bivens action may only be brought against the responsible official alleged to have acted 5 under color of federal law in his or her individual capacity. Daly-Murphy v. Winston, 6 837 F.2d 348, 355 (9th Cir.1988). Bivens does not authorize a suit against the 7 government or its agencies for monetary relief. FDIC v. Meyer, 510 U.S. 471, 486 8 (1994). Accordingly, to the extent Plaintiff intends to bring a claim against the DHS or 9 ICE, it must be dismissed pursuant to 28 U.S.C. § 1915(e)(2). Lopez, 203 F.3d at 1127. 10 D. Respondeat Superior 11 Second, the Court finds that to the extent Plaintiff seeks to hold a number of 12 Defendants liable in their supervisory capacity including, the President of the United 13 States, the Governor of California, the Attorney General for the United States, among 14 others, his Complaint fails to “contain sufficient factual matter, accepted as true, to ‘state 15 a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 16 550 U.S. at 570). 17 “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff 18 must plead that each government-official defendant, through the official’s own 19 individual actions, has violated the Constitution.” Id. at 676; see also Jones v. 20 Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 21 1984) (even pro se plaintiff must “allege with at least me degree of particularity overt 22 acts which defendants engaged in” in order to state a claim). Thus, Plaintiff must include 23 in his pleading sufficient “factual content that allows the court to draw the reasonable 24 inference that the defendant is liable for the misconduct alleged,” Iqbal, 556 U.S. at 678, 25 and describe personal acts by each individual defendant which show a direct causal 26 connection to a violation of specific constitutional rights. Taylor v. List, 880 F.2d 1040, 27 1045 (9th Cir. 1989). 28 /// I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd 6 14cv2450 LAB (WVG) 1 As currently pleaded, Plaintiff’s Complaint fails to include any factual content to 2 suggest that any of these Defendants personally participated in any unconstitutional 3 violation. Therefore, he has failed to state a claim upon which relief can be granted as 4 to any of these Defendants. See 28 U.S.C. § 1915(e)(2). 5 E. Access to Courts Claims 6 Plaintiff alleges that the immigration detention facilities “fail to allow prisoners 7 a reasonable amount of time” in the law library and as a result, he has “suffered 8 ‘detriment.’” (Compl. at 4.) 9 Prisoners “have a constitutional right to petition the government for redress of 10 their grievances, which includes a reasonable right of access to the courts.” O’Keefe v. 11 Van Boening, 82 F.3d 322, 325 (9th Cir. 1996); accord Bradley v. Hall, 64 F.3d 1276, 12 1279 (9th Cir. 1995). In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court held 13 that “the fundamental constitutional right of access to the courts requires prison 14 authorities to assist inmates in the preparation and filing of meaningful legal papers by 15 providing prisoners with adequate law libraries or adequate assistance from persons who 16 are trained in the law.” Id. at 828. To establish a violation of the right to access to the 17 courts, however, a prisoner must allege facts sufficient to show that: (1) a non-frivolous 18 legal attack on his conviction, sentence, or conditions of confinement has been frustrated 19 or impeded, and (2) he has suffered an actual injury as a result. Lewis v. Casey, 518 U.S. 20 343, 353-55 (1996). An “actual injury” is defined as “actual prejudice with respect to 21 contemplated or existing litigation, such as the inability to meet a filing deadline or to 22 present a claim.” Id. at 348; see also Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 23 1994); Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989); Keenan v. Hall, 83 F.3d 24 1083, 1093 (9th Cir. 1996). 25 Here, Plaintiff fails to allege any specific action on the part the part of employees 26 of the detention facilities which precluded his pursuit of a non-frivolous direct or 27 collateral attack upon either his criminal conviction or sentence or the conditions of his 28 current confinement. See Lewis, 518 U.S. at 355 (right to access to the courts protects I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd 7 14cv2450 LAB (WVG) 1 only an inmate’s need and ability to “attack [his] sentence[], directly or collaterally, and 2 . . . to challenge the conditions of [his] confinement.”). In addition, Plaintiff must also, 3 but has failed to, describe the non-frivolous nature of the “underlying cause of action, 4 whether anticipated or lost.” Christopher v. Harbury, 536 U.S. 403, 415 (2002). 5 In short, because Plaintiff has failed to allege that “a complaint he prepared was 6 dismissed,” or that he was “so stymied” that “he was unable to even file a complaint,” 7 direct appeal, or petition for writ of habeas corpus that was not “frivolous,” his access 8 to courts claims fail. Lewis, 518 U.S. at 351; Christopher, 536 U.S. at 416 (“like any 9 other element of an access claim[,] . . . the predicate claim [must] be described well 10 enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’ nature of the 11 underlying claim is more than hope.”). 12 Finally, Plaintiff’s complaints related to the general deficiencies of the law library 13 also fail to state a claim. Law libraries and legal assistance programs are only the means 14 of ensuring access to the courts. Lewis, 518 U.S. at 351. Because inmates do not have 15 “an abstract, freestanding right to a law library or legal assistance, an inmate cannot 16 establish relevant actual injury by establishing that his prison’s law library or legal 17 assistance program is subpar in some theoretical sense.” Id.; Blaisdell v. Frappiea, 729 18 F.3d 1237, 1244 (9th Cir. 2013). 19 F. Defense Counsel and Heck Bar 20 Plaintiff seeks monetary damages against attorneys appointed to represent him in 21 his immigration and criminal proceedings. However, a person “acts under color of state 22 law [for purposes of § 1983] only when exercising power ‘possessed by virtue of state 23 law and made possible only because the wrongdoer is clothed with the authority of state 24 law.’” Polk County v. Dodson, 454 U.S. 312, 317-18 (1981) (quoting United States v. 25 Classic, 313 U.S. 299, 326 (1941)). Attorneys appointed to represent a criminal 26 defendant during trial, do not generally act under color of state law because representing 27 a client “is essentially a private function ... for which state office and authority are not 28 needed.” Polk County, 454 U.S. at 319; United States v. De Gross, 960 F.2d 1433, 1442 I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd 8 14cv2450 LAB (WVG) 1 n.12 (9th Cir. 1992). Thus, when publicly appointed counsel are performing as 2 advocates, i.e., meeting with clients, investigating possible defenses, presenting evidence 3 at trial and arguing to the jury, they do not act under color of state law for section 1983 4 purposes. See Georgia v. McCollum, 505 U.S. 42, 53 (1992); Polk County, 454 U.S. at 5 320-25; Miranda v. Clark County, 319 F.3d 465, 468 (9th Cir. 2003) (en banc) (finding 6 that public defender was not a state actor subject to suit under § 1983 because, so long 7 as he performs a traditional role of an attorney for a client, “his function,” no matter how 8 ineffective, is “to represent his client, not the interests of the state or county.”). 9 Accordingly, Plaintiff’s claims against his defense counsel must be dismissed for 10 failing to state a claim upon which section 1983 relief may be granted. See 28 U.S.C. 11 § 1915(e)(2)(B)(ii). 12 Moreover, to the extent Plaintiff seeks damages under 42 U.S.C. § 1983 based on 13 the alleged ineffectiveness assistance of his trial counsel, his claim amounts to an attack 14 on the validity of his underlying criminal proceedings, and as such, is not cognizable 15 under 42 U.S.C. § 1983 unless and until he can show that conviction has already been 16 invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Ramirez v. Galaza, 334 17 F.3d 850, 855-56 (9th Cir. 2003) (“Absent such a showing, ‘[e]ven a prisoner who has 18 fully exhausted available state remedies has no cause of action under § 1983....’”) 19 (quoting Heck, 512 U.S. at 489), cert. denied, 124 S. Ct. 2388 (2004). Heck holds that 20 “in order to recover damages for allegedly unconstitutional conviction or imprisonment, 21 or for other harm caused by actions whose unlawfulness would render a conviction or 22 sentence invalid, a section 1983 plaintiff must prove that the conviction or sentence has 23 been reversed on direct appeal, expunged by executive order, declared invalid by a state 24 tribunal authorized to make such determination, or called into question by a federal 25 court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-87. A claim 26 challenging the legality of a conviction or sentence that has not been so invalidated is not 27 cognizable under § 1983. Id. at 487; Edwards v. Balisok, 520 U.S. 641, 643 (1997). 28 /// I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd 9 14cv2450 LAB (WVG) 1 In Heck, the Supreme Court held that: when a state prisoner seeks damages in a section 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed. 2 3 4 5 6 7 8 Heck, 512 U.S. at 487 (emphasis added). An action that is barred by Heck should be 9 dismissed for failure to state a claim without prejudice to Plaintiff’s right to file a new 10 action if he succeeds in invalidating his conviction. Edwards, 520 U.S. at 649. 11 Here, Plaintiff’s ineffective assistance of counsel claims “necessarily imply the 12 invalidity” of his criminal proceedings and continuing incarceration. Heck, 512 U.S. at 13 487. Were Plaintiff to succeed in showing that his defense counsel rendered ineffective 14 assistance of counsel, an award of damages would “necessarily imply the invalidity” of 15 his conviction. Id.; see also Strickland v. Washington, 466 U.S. 668, 688 (1984) (to 16 succeed on ineffective assistance claim petitioner must show that counsel’s performance 17 fell below objective standard of reasonableness and that but for counsel’s errors the 18 result of the trial would have been different); Lozada v. Deeds, 964 F.2d 956, 958-59 19 (9th Cir. 1992) (remedy for ineffective assistance of counsel is a conditional writ 20 granting petitioner’s release unless state retries him or allows him to pursue an appeal 21 with the assistance of counsel within a reasonable time). Thus, because Plaintiff seeks 22 damages for an allegedly unconstitutional criminal proceedings in a criminal case, and 23 because he has not alleged that his conviction has already been invalidated, a section 24 1983 claim for damages has not yet accrued. See Heck, 512 U.S. at 489-90. 25 G. Prosecutorial Defendants 26 In addition, the Court must dismiss Plaintiff’s claims for money damages against 27 various criminal prosecutors he has named as Defendants in this matter. Criminal 28 prosecutors are absolutely immune from civil damages suits premised upon acts I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd 10 14cv2450 LAB (WVG) 1 committed within the scope of their official duties which are “intimately associated with 2 the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 3 (1976); see also Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993); Burns v. Reed, 4 500 U.S. 478, 487-93 (1991). A prosecutor is immune even when the prosecutor’s 5 malicious or dishonest action deprived the defendant of his or her liberty. Ashelman, 793 6 F.2d at 1075. 7 and Booth are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) for seeking monetary 8 relief against defendants who are immune from such relief without leave to amend. 9 H. Thus, Plaintiff’s claim against Defendants Cooley, Lacey, Matsumoto, Judicial Defendants 10 In addition, to the Plaintiff is seeking money damages based on rulings made by 11 Superior Court Judges presiding over his criminal proceedings and Immigration Court 12 Judges presiding over his immigration proceedings, these Defendants are absolutely 13 immune. “Judges and those performing judge-like functions are absolutely immune 14 from damage liability for acts performed in their official capacities.” Ashelman v. Pope, 15 793 F.2d 1072, 1075 (9th Cir. 1986). Therefore, these Defendants have absolute 16 immunity from civil proceedings relating to these actions, which were performed within 17 their judicial discretion and are dismissed from this action with prejudice. 18 I. Rule 8 19 Finally, while the Court will provide Plaintiff with the opportunity to file an 20 Amended Complaint, he must comply with Rule 8 of the Federal Rules of Civil 21 Procedure. Every complaint must contain “a short and plain statement of the claim 22 showing that the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). Detailed factual 23 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of 24 action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 25 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 26 Plaintiff’s Complaint falls far short of providing the purported Defendants, with “fair 27 notice” of what his claims are, or “the grounds upon which [they] rest[].” Leatherman 28 v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd 11 14cv2450 LAB (WVG) 1 (1993). While the Federal Rules adopt a flexible pleading policy, every complaint must, 2 at minimum, give fair notice and state the elements of each claim against each defendant 3 plainly and succinctly. Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 4 (9th Cir. 1984); Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). 5 III. CONCLUSION AND ORDER 6 Good cause appearing, therefor, IT IS HEREBY ORDERED that: 7 1. Plaintiff’s Motion to Appoint Counsel (ECF Doc. No. 3) is DENIED without prejudice. 8 2. Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) (ECF Doc. No. 2) is 9 10 GRANTED. 3. Plaintiff’s Complaint (ECF Doc. No. 1) is DISMISSED without prejudice for failing to 11 state a claim pursuant to 28 U.S.C. § 1915(e)(2)(b). However, Plaintiff is GRANTED forty five (45) 12 days leave from the date this Order is filed in which to re-open the case by filing a Amended Complaint. 13 Plaintiff’s Amended Complaint address the deficiencies of pleading noted in this Order and must also 14 be complete in itself without reference to his original Complaint. See S.D. CAL. CIVLR 15.1; Hal Roach 15 Studios, Inc., 896 F.2d at 1546 (“[A]n amended pleading supersedes the original.”); King v. Atiyeh, 814 16 F.2d 565, 567 (9th Cir. 1987) (citation omitted) (“All causes of action alleged in an original complaint 17 which are not alleged in an amended complaint are waived.”). 18 Should Plaintiff fail to file a Amended Complaint within the time provided, this civil action shall 19 remain closed and case shall remain dismissed without prejudice based on Plaintiff’s failure to state a 20 claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2). 21 DATED: November 12, 2014 22 23 24 HONORABLE LARRY ALAN BURNS United States District Judge 25 26 27 28 I:\Everyone\_EFILE-PROSE\LAB\14cv2450-grt -IFP& dny csl & dsm.wpd 12 14cv2450 LAB (WVG)
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