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Steven Tkac v. Arthur anderson

October 26, 2011

STEVEN TKAC,
PLAINTIFF,
v.
ARTHUR ANDERSON, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DISMISSING FIRST AMENDED COMPLAINT, WITH LEAVE TO FILE SECOND AMENDED COMPLAINT WITHIN THIRTY DAYS (ECF No. 9)

Screening Order

I. Screening Requirement

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c)(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. 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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

II. Plaintiff's Claims

This action proceeds on the August 20, 2010, first amended complaint.*fn1 Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR) at the Substance Abuse Treatment Facility at Corcoran, brings this action against correctional officials employed by the CDCR. Plaintiff names the following individual defendants: Arthur Anderson, Commissioner, Board of Parole Hearings; Martin Hoshino, Executive Officer, Board of Parole Hearings; Philip Reiser, Staff Counsel, Board of Parole Hearings; Mario Reyes, Deputy Commissioner, Board of Parole Hearings; James D. Hartley, Warden at Avenal State Prison (ASP); Correctional Counselor A. Guzman at (ASP); A. Lloren, Facility Captain at ASP; N. Lopez, Appeals Coordinator at ASP; Rosemary Ndoh, Associate Warden at ASP; E. Quezada, Correctional Officer (C/O) at ASP; T. Smith, Lieutenant at ASP; Bill McCollough, Associate Information Systems Analyst at ASP.

Plaintiff's statement of claim, in its entirety, follows

Bill McCollough and Rosemary Ndoh generated an inaccurate informational chrono (CDC 128B) to punish plaintiff (w/o due process). A Lloren and A. Guzman utilized the inaccurate informational chrono to punish plaintiff w/o due process. James D. Hartley ignored plaintiff's complaints of misconduct by Bill McCollough, Rosemary Ndoh, A. Lloren and A. Guzman. N. Lopez failed to properly process plaintiff's complaints. A. Lloren ordered T. Smith who, in turn ordered E. Quezada to generate a false rules violation report (CDC 115) to justify punishing plaintiff based on Bill McCollough's and Rosemary Ndoh's inaccurate chrono, and in reprisal for alleging staff misconduct. Arthur Anderson and Mario H. Reyes utilized the pending false rules violation report as a reason to deny plaintiff's liberty for two years. Martin Hoshino and Philip Reiser ignored plaintiff's request to review Arthur Anderson, and Mario H. Reyes's decision and stated that plaintiff should take them 'to court.'

(Am. Compl. ¶ IV.)

To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted under color of state law and (2) the defendant deprived him of rights secured by the Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). "A person deprives another of a constitutional right, where that person 'does an affirmative act, participates in another's affirmative acts, or omits to perform an act which [that person] is legally required to do that causes the deprivation of which complaint is made.'" Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). "[T]he 'requisite causal connection can be established not only by some kind of direct, personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.'" Id. (quoting Johnson at 743-44).

A. Denial of Parole

Plaintiff appears the challenge the basis of the denial of his parole. Plaintiff's central claim is that the Parole Commission relied on inaccurate information in considering his suitability for parole. Should Plaintiff prevail on his claim, the basis of his parole denial would be in question. When a prisoner challenges the legality or duration of his custody, or raises a constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Where the complaint states a habeas claim instead of a § 1983 claim, the court should dismiss the claim without prejudice for failure to exhaust, rather than converting it to a habeas and addressing it on the merits. See Blueford v. Prunty, 10 ...


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