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Jayne v. Schwarzenegger

February 10, 2009



Plaintiff is a state prisoner proceeding pro se and in forma pauperis. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's amended complaint as well as plaintiff's motions to seal the record in this case.


Plaintiff commenced this action by filing a civil rights complaint, challenging his parole revocation proceedings. On June 15, 2006, the undersigned recommended dismissal of this action because plaintiff's parole revocation had not been invalidated through habeas corpus proceedings or otherwise. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). On March 21, 2008, the assigned district judge rejected the findings and recommendations because, while the findings and recommendations were pending, plaintiff's petition for a writ of habeas corpus had been dismissed as moot. The assigned district judge also reviewed plaintiff's complaint and determined that, as presently drafted, it failed to state a cause of action. In addition to granting plaintiff leave to amend, the assigned district judge noted that plaintiff was no longer incarcerated and therefore denied plaintiff's motion to proceed in forma pauperis without prejudice. The assigned district judge then referred the matter back to the undersigned.

The time period for filing an amended complaint along with the appropriate filing fee or a new application to proceed in forma pauperis expired, and plaintiff had not filed an amended complaint, had not paid the appropriate filing fee, had not filed a new application to proceed in forma pauperis, and had not otherwise responded to the court's order. Accordingly, on May 9, 2008, the undersigned again issued findings and recommendations recommending dismissal of this action without prejudice. See Local Rule 11-110; Fed. R. Civ. P. 41(b). On August 25, 2008, the assigned district judge rejected the findings and recommendations because, while these findings and recommendations were pending, plaintiff filed an amended complaint along with a declaration asking the court to accept the belatedly filed amended complaint. Plaintiff, then incarcerated in the Shasta County Jail, also filed a new application to proceed in forma pauperis. The assigned district judge construed plaintiff's declaration as a motion for leave to amend and granted both the motion and plaintiff's application to proceed in forma pauperis. The assigned district judge then referred the matter to the undersigned once again.


Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C. §§ 1914(a) & 1915(b)(1). Plaintiff has been without funds for six months and is currently without funds. Accordingly, the court will not assess an initial partial filing fee. See 28 U.S.C. § 1915(b)(1). Plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments shall be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. See 28 U.S.C. § 1915(b)(2).

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. See 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. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, ___, 127 S.Ct. 1955, 1965 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic, 127 S.Ct. at 1965. In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

The Civil Rights Act under which this action was filed provides as follows: 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.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

In the present case, plaintiff has identified as defendants the following entities and individuals: Shasta County, Shasta County Deputy Sheriff Greg Maul, Shasta County Patrol Captain Tom Boserko, Shasta County Sheriff's Swat Team, Shasta County District Attorney Jerry Benito, Shasta County Deputy District Attorney O'Marha, Deputy Parole Commissioner Robert Harmon, Parole Agent Larry Welch, Parole Agent Randy Abney, Witness Bonnie Jennings, Witness Harvey Leedy, and the Director of the California Department of Corrections and Rehabilitation ("CDCR"). (Am. Compl. at 3-4.)

In his amended complaint, plaintiff alleges as follows. On or about October 9, 2005, defendant Maul interviewed a victim of an attempted car-jacking. As a result, defendant Maul issued a "be on the look out" bulletin for plaintiff, believing that he was a suspect in the commission of the attempted car-jacking. On or about October 11, 2005, defendant Maul and the Shasta County Swat Team arrived at the residence of William Sergent and yelled to plaintiff to come out of the house. Plaintiff told the detectives that he did not do anything wrong and felt that if he came out of the house, he would be shot and killed. (Id. at 6.)

Ultimately, plaintiff surrendered to members of the Swat Team. During the surrender, however, Swat Team members threw plaintiff, his wife, and their newborn daughter to the ground. They then booked plaintiff in the Shasta County Jail on charges of attempted ...

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