The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
This action commenced on February 10, 2010, in the Northern District of California. However, only as of September 10, 2010, has the case been transferred to this court. This case has been construed as an action pursuant to 42 U.S.C. § 1983; the docket indicates that plaintiff, a state prisoner incarcerated at California State Prison - Corcoran, has had his request to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915, granted. Docket # 17. Plaintiff has consented to the jurisdiction of the undersigned. Docket # 29.
Plaintiff seeks to proceed not on the original filing dated February 10, 2010, but on a later incarnation, filed on March 24, 2010. Docket # 9. This court will construe the entry at docket # 9, denominated "complaint" to be an amended complaint filed by plaintiff, find that it supersedes the original and proceed to screen the amended complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 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. 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.
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 Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, No. 07-1015, 2009 WL 1361536 at * 12 (May 18, 2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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." Id.
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, 96 S.Ct. 1848 (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, 89 S.Ct. 1843 (1969).
Plaintiff names as defendants in his amended complaint: California Attorney General Edmund G. Brown, Jr.; California Department of Corrections and Rehabilitation (CDCR) Matthew Cate; California State Prison- Corcoran (CSP-Cor) Warden Raul Lopez; and Governor Arnold Schwarzenegger. Amended Complaint (AC), docket # 9, pp. 1-3. Plaintiff claims that defendant Brown illegally circumvented a court order, on November 1, 2007, by issuing erroneous and fraudulent information to CDCR officials to unlawfully detain plaintiff in prison after his sentence had been vacated and remanded by the Sixth District Court of Appeals on May 30, 2007, in Case No. HO29616. Id. at 3. Plaintiff also claims that defendant Cate has been detaining him since May 30, 2007, without a lawful abstract of judgment from a superior court setting forth his sentence [or re-sentence]. Id. at 3, 5. Plaintiff alleges that defendant Lopez is currently housing plaintiff at CSP-Corcoran, subjecting him to punitive CDCR policies, actions and decisions without a lawful abstract of judgment showing his sentence. Id. at 5. Plaintiff's claim as to defendant Schwarzenegger is that, as governor, he oversees all state agencies and is legally responsible for ensuring that state facilities and agencies comply with state and federal laws. Id. Plaintiff claims that defendant Schwarzenegger has been aware of the civil rights violations to which plaintiff has been subjected since September 6, 2009, as a result of Senator Dianne Feinstein's letter to his office but has failed to take corrective measures. Id. and Exhibit C (copy of letter dated Sept. 6, 2009, on U.S. Senate letterhead and signed by Dianne Feinstein indicating that she has referred his letter regarding plaintiff's "difficulties with resentencing" to Gov. Schwarzenegger's office).
Plaintiff claims that "[f]or 34 months and counting" he has been subjected to unlawful actions that have been in reckless disregard of his civil rights. AC, p. 6. He contends that defendants' actions have amounted to "premeditated criminal conspiracy, aggravated assault...aggravated kidnapping...and premeditated reckless endangerment." Id. Plaintiff states that he "fears for his life," but, other than his claim that he is being unlawfully confined, fails to provide the basis for this fear. Id. Plaintiff seeks injunctive relief, without specifying that he is seeking release from prison. He also asks that his personal property "unlawfully confiscated" from him by unnamed CDCR officials be restored to him. Id. Confusingly, plaintiff claims he is "lawfully" in the custody of Santa Clara County. Id. at 11. Plaintiff's amended complaint will be dismissed with leave to amend.
Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. 1979, as amended, 42 U.S.C. 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); requests for relief turning on circumstances of confinement may be presented in a § 1983 action.
Muhammad v. Close, 540 U.S.749, 750, 124 S.Ct. 1303, 1304 (2004) (per curiam).
To the extent that plaintiff may be seeking a release from custody and in fact is challenging the validity of his confinement, which he certainly appears to be doing, plaintiff, as petitioner, must proceed on a habeas application, pursuant to 28 U.S.C. § 2254, naming the warden of California State Prison in Corcoran, where he is currently confined, as respondent.*fn1
To the extent that his challenge is to the sentencing or re-sentencing (or lack thereof) of a Santa Clara County Superior Court, his petition should be filed in the Northern District because while both the Fresno Division of the Eastern District (where plaintiff/petitioner is confined) and the Northern District (where he was convicted) have jurisdiction, see Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), any and all witnesses and evidence necessary for the resolution of petitioner's application are more readily available in Santa Clara County, within the jurisdiction of the United States District Court for the Northern District. Id. at 499 n.15; 28 U.S.C. § 2241(d).
To the extent that plaintiff wishes to proceed on an action pursuant to 42 U.S.C. § 1983, he must further amend his allegations to set forth specific, colorable allegations against named defendants who have actually subjected him to unconstitutional conditions of confinement and not simply name state officials for having allegedly illegally confined him. As any such defendants would appear to be associated with CSP-Corcoran, in Kings County, should plaintiff file a further amended complaint setting forth alleged violations within Kings County, part of the Fresno Division of the United States District ...