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Heilman v. Sanchez

November 8, 2010

THOMAS JOHN HEILMAN, PLAINTIFF,
v.
L. SANCHEZ, DEFENDANT.



ORDER

Plaintiff, a state prisoner proceeding pro se, commenced this civil action by filing a complaint in the Solano County Superior Court. That action was removed by defendant L. Sanchez to this court pursuant to 28 U.S.C. § 1441(b). Now before the court is plaintiff's opposition to the removal of his action to federal court as well as defendant's request that the court screen plaintiff's complaint.

I. Plaintiff's Request for Remand*fn1

In his opposition to the removal of this action, plaintiff cites 28 U.S.C. § 1367 which provides for supplemental jurisdiction by district courts over state law claims under certain circumstances. Plaintiff argues that this court has discretion to stay the action so that he can proceed with his state court action. Plaintiff argues that the state court can resolve his civil rights claims and that this court should either reject the removal of the action or stay these proceedings so that the state court can rule on defendant's use of unwritten rules and regulations which are unauthorized under California statutes.

A defendant may remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). Federal district courts "shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "The burden of establishing federal jurisdiction falls on the party invoking removal." Harris v. Provident Life & Accidental Ins. Co., 26 F.3d 930, 932 (9th Cir. 1994) (quoting Guold v. Mut. Life Ins. Co. of New York, 790 F.2d 769, 771 (9th Cir. 1986)). See also Luther v. Countrywide Home Loans Servicing LP, 533 F.3d 1031, 1034 (9th Cir. 2008); Prize Frize Inc. v. Matrix Inc., 167 F.3d 1261, 1265 (9th Cir. 1999) The party invoking removal must demonstrate that the resolution of the federal question plays "a significant role in the proceedings." Hunter v. United Van Lines, 746 F.2d 635, 646 (9th Cir. 1984).

Here, defendant has met his burden of establishing federal jurisdiction over this action. In his complaint, plaintiff presents two claims. First, plaintiff claims that defendant Sanchez retaliated against him in violation of the First and Fourteenth Amendments to the U.S. Constitution. Second, plaintiff claims that defendant Sanchez used unwritten rules to harass and retaliate against him in violation of plaintiff's right to access the courts guaranteed by the First Amendment and his Fourteenth Amendment right to due process and equal protection. Both claims arise under the U.S. Constitution and this court has subject matter jurisdiction pursuant to 42 U.S.C. § 1983. Indeed, plaintiff does not allege in his complaint any violations of state law. Accordingly, the court finds that defendant's removal of this action to this court is proper.

II. Screening Requirement

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, 555 (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, 550 U.S. at 555. 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).

III. Dismissal of Complaint with Leave to File an Amended Complaint

The allegations in plaintiff's complaint are so vague and conclusory that the court is unable to determine whether the current action is frivolous or fails to state a claim for relief. Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice to the defendants and must allege facts that support the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support his claims. Id. Because plaintiff has failed to comply with the requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedure, the complaint must be dismissed. The court will, however, grant leave to file an amended complaint.

Plaintiff is also informed that the court cannot refer to a prior pleading in order to make his amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint plaintiff must ...


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