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Kenneth D. Carmony v. Virgil Akins


May 10, 2011


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, a former state prisoner proceeding pro se, brings this action purportedly pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's complaint (Doc. 1).

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court is also required to screen complaints brought by litigants who have been granted leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2). Under these screening provisions, the court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § § 1915(e)(2)(A), (B) and 1915A(b)(1), (2). Moreover, pursuant to Federal Rule of Civil Procedure 12(h), this court must dismiss an action "[w]henever it appears . . . that the court lacks jurisdiction of the subject matter . . . ." Because plaintiff, who is not a prisoner, has been granted leave to proceed in forma pauperis, the court will screen the complaint pursuant to § 1915(e)(2). Pursuant to Rule 12(h), the court will also consider as a threshold matter whether it has subject-matter jurisdiction. xxx

The Federal Rules of Civil Procedure require that complaints contain a " short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff must allege with at least some degree of particularity overt acts by specific defendants which support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is impossible for the court to conduct the screening required by law when the allegations are vague and conclusory.


Plaintiff's claims are unclear. His complaint begins on a standard prisoner civil rights form, but then changes to a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Thus, it is unclear if plaintiff is attempting to challenge his conviction, for which he provides some information, or a violation of his civil rights. As more allegations are included regarding his alleged civil rights action, the court will assume he is actually attempting to file a civil rights action. If, however, plaintiff is actually attempting to challenge his conviction, he will need to file an appropriate petition providing the grounds for relief he seeks.

To the extent plaintiff's complaint is his attempt to address an alleged violation of his civil rights, plaintiff's complaint is insufficient. He alleges he is being denied his land property rights by Dr. Virgil Akins and the Bureau of Indian Affairs. It appears the land in question is on an Indian reservation, and the land belongs to his mother. He claims he had permission from his mother to reside on the property, but was evicted. He states the defendants are liable for his unlawful eviction and denial of access to his property and land. The only defendants plaintiff names are Dr. Virgil Akins, who appears to be a Bureau of Indian Affairs (BIA) employee, and the BIA itself.


Section 1983 provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunity secured by the Constitution and laws, 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. "Traditionally, the requirements for relief under [ §] 1983 have been articulated as (1) a violation of rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by conduct of a 'person' (4) acting under color of state law." Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Generally, plaintiffs are required to "plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes." Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986); see also WMX Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir. 1999) (en banc). Public defenders, acting as an advocate for their client, are not acting under color of state law for § 1983 purposes. See Georgia v. McCollum, 505 U.S. 42, 53 (1992); Polk County v. Dodson, 454 U.S. 312, 320-25 (1981).

Plaintiff's complaint does not name any defendant who could be considered a state actor. Rather, the defendant's plaintiff names appear to be a federal agent and agency. Thus, it is possible that plaintiff is attempting to bring an action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme Court recognized a claim against federal officials who participated directly in an alleged constitutional violation. This type of action is against the federal official in his or her individual capacity, not against an official in his or her official capacity or against a federal agency. See FDIC v. Meyer, 510 U.S. 471, 485-86 (1994). Bivens creates a cause of action only against federal officials who participated directly in the claimed constitutional violation, and the doctrine of respondeat superior cannot be invoked to support such a cause of action. See Bibeau v. Pacific Nw. Research Found. Inc., 188 F.3d 1105, 1114 (9th Cir.1999) (citing Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir.1991)).

Plaintiff's complaint appears to claim that he was deprived of his property without proper due process of law, in violation of his rights under the Fifth Amendment.

The Due Process Clause of the Fifth Amendment guarantees that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." In order to prevail on a claim of deprivation of due process, a plaintiff must first establish the existence of a liberty or property interest for which the protection is sought; it then has to be decided "what procedures constitute 'due process of law.'" Ingraham v. Wright, 430 U.S. 651, 672 (1977) (citations omitted); see also Bd. of Regents v. Roth, 408 U.S. 564, 569-70 (1972). Due process protects against the deprivation of property where there is a legitimate claim of entitlement to the property. See Bd. of Regents, 408 U.S. at 577. Protected property interests are created, and their dimensions are defined, by existing rules that stem from an independent source -- such as state law -- and which secure certain benefits and support claims of entitlement to those benefits. See id.

It is well settled that "some form of hearing is required before an individual is finally deprived of a property interest." Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citing Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974)). While "'[d]ue process is flexible and calls for such procedural protections as the particular situation demands,'" "[t]he fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972); Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). However, there can be circumstances "that justifies postponing the hearing until after the event." Boddie v. Connecticut, 401 U.S. 371, 378-79 (1971). "A predeprivation hearing may be postponed 'where some valid governmental interest is at stake.'" First Nat. Bank & Trust v. Dep't of Treasury, 63 F.3d 894, 896 (9th Cir. 1995) (quoting U.S. v. James Daniel Good Real Prop., 510 U.S. 43, 53 (1993)).

To determine whether a predeprivation hearing is required, a balancing of three factors is required: "First, the private interest that will be affected by the official action; second the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews, 424 U.S. at 335.

Here, plaintiff appears to allege that he was deprived of his property through some sort of eviction process. What process was used, or was not used, is not clear based on the facts alleged in the complaint. This case is further complicated by the appearance that the property plaintiff was deprived of was tribal land belonging to his mother. If that is the situation, it would not appear that plaintiff has any claim to the land. In addition, the defendants named do not appear to be the individuals actually involved in the alleged due process violation, nor do they appear to have been involved in the property deprivation. Rather, it appears that plaintiff filed a complaint with the defendants, who addressed plaintiff's concern.

To state a claim for violation of his constitutional rights, plaintiff must allege an actual connection or link between the actions of the named defendants and the alleged deprivations. See Monell v. Dep't 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 . . . 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). 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). Rather, the plaintiff must set forth specific facts as to each individual defendant's causal role in the alleged constitutional deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). The Supreme Court has rejected the notion that a supervisory defendant can be liable based on knowledge and acquiescence in a subordinate's unconstitutional conduct because government officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct and not the conduct of others. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "[A] plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the constitution." Id. at 1948.


Because it is possible that the deficiencies identified in this order may be cured by amending the complaint, plaintiff is entitled to leave to amend prior to dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to amend, all claims alleged in the original complaint which are not alleged in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if plaintiff amends the complaint, the court cannot refer to the prior pleading in order to make plaintiff's amended complaint complete. See Local Rule 15-220. An amended complaint must be complete in itself without reference to any prior pleading. See id.

If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how each named defendant is involved, and must set forth some affirmative link or connection between each defendant's actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

If plaintiff is in fact attempting to challenge his conviction and not the deprivation of his property, he is required to file a new petition for writ of habeas corpus wherein he states his claims for relief without reference to the property deprivation.

Finally, plaintiff is warned that failure to file an amended complaint within the time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply with Rule 8 may, in the court's discretion, be dismissed with prejudice pursuant to Rule 41(b). See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's complaint is dismissed with leave to amend; and

2. Plaintiff shall file an amended complaint within 30 days of the date of service of this order.


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