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Robin Gillen Starr v. Jeff Reisig


February 19, 2013


The opinion of the court was delivered by: Allison Claire United States Magistrate Judge


Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 U.S.C. § 1983 together with a request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

Motion to Proceed in Forma Pauperis

Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 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. 28 U.S.C. § 1915(b)(1). Plaintiff is 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. 28 U.S.C. § 1915(b)(2).

The Complaint

Screening Requirements 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, 555 (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, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "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 (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).

Summary of the Complaint

At the outset, the court notes that plaintiff's initial pleading is entitled "Class Action Complaint Re: 42 U.S.C. § 1983 28 U.S.C. § 2254 (Petition for Habeas Corpus)." See ECF No. 1 at 1. A review of the complaint reflects that plaintiff appears to be rasing claims in connection with plaintiff's December 11, 2009 conviction for transportation of a controlled substance, and the 2007 arrest which led to the conviction. See ECF No. 1 at 4, 13. For instance, plaintiff alleges that he was illegally searched in violation of the Fourth Amendment; that he was illegally charged, in violation of the Double Jeopardy Clause; and that his sentence was illegally enhanced using prior convictions.

Plaintiff also raises a variety of other claims which appear to arise from his current conditions of confinement. First, plaintiff appears to allege some kind of excessive force claim again defendant Matthew Cate, "who was at all time responsible for all employee(s) actions in CDCR. . . .For torture on 7/10/11 by Lt. Arnold, Lt. Broderick, Sgt. Fell, and head wound on 8/31/11 by Lt. Tyler/C/O Borges." ECF No. 1 at 2-3, ¶ 4. Plaintiff raises these dates again in what could be a medical care claim: "For torture on 7/10/11 and assault on 8/31/11 and Du Santi and Appleguist on ride to H.D.S.P. injured to head! Surgery 9/4/11 Dr. Smith!" ECF No. 1 at 7. Plaintiff provides no other information about the July, August, and September 2011 incidents.

Plaintiff additionally accuses the state of California of charging heavier penalties than the law allows, of slandering inmates' names and reputations, and of slavery. ECF No. 1 at 1.

It appears from review of the complaint that plaintiff seeks declaratory relief, injunctive relief, compensatory damages of $50,000 and punitive damages of $50 million. ECF No. 1 at 5, ¶ 20 - 7, ¶ 31.

The injunctive relief sought by plaintiff appears to be (1) reversal of plaintiff's conviction; (2) plaintiff's immediate release; (3) expungement of all "negative entries" in plaintiff's records; (4) a permanent injunction for the state "to stop using unverified documents in courts"; and (5) a permanent injunction on the use of priors and strikes, presumably in sentencing. Plaintiff appears to seeks this relief in the forms of both a temporary restraining order and a permanent injunction. ECF No. 1 at 2, ¶¶ 1-2; 6, ¶ 25; 16.

Also as part of his requested relief, plaintiff asks that the court "[s]top phone contracts ripping off inmate families!" ECF No. 1 at 6, ¶ 26. Plaintiff also asks the court to enter an order restraining state employees from denying copies, paper, envelopes, and law library access, presumably to prisoners. See ECF No. 1 at 16.

As defendants, plaintiff names Jeff Reisig, the district attorney of Yolo County; Governor Brown of California; Matthew Cate, director of the California Department of Corrections and Rehabilitation ("CDCR") who "is and was at all times responsible for all employee(s) actions in CDCR. . . ."; Marie Geddis, the "agent in charge of petitioner on October 7, 2007 in Yolo County"; Krantz # 850, an officer of the Woodland Police department on October 17, 2007; DeLeon, who is otherwise not described or identified; and Frank Chavez, the warden at Sierra Conservation Center who "was responsible for all his employee(s) actions between 4-25-2011 and 11-10-2011." ECF No. 1 at 2-3, ¶¶ 3-6. All defendants are sued in their individual and official capacities. Id. at 1.


Habeas and Civil Rights 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. Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). 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 (1973); requests for relief turning on circumstances of confinement may be presented in a § 1983 action. Muhammad v. Close, 540 U.S. at 750. Some cases are hybrids, with a prisoner seeking relief unavailable in habeas, notably damages, but on allegations that not only support a claim for recompense, but imply the invalidity either of an underlying conviction or of a particular ground for denying release short of serving the maximum term of confinement. Id. at 750-51.

In Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court held that where success in a prisoner's §1983 damages action would implicitly question the validity of conviction or duration of sentence, the litigant must first achieve favorable termination of his available state, or federal habeas, opportunities to challenge the underlying conviction or sentence. See Muhammad v. Close, 540 U.S. at 751. Accordingly, in Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court applied Heck in the circumstances of a §1983 action claiming damages and equitable relief for a procedural defect in a prison's administrative process, where the administrative action taken against the plaintiff could affect credits toward release based on good-time served. See Muhammad v. Close, 540 U.S. at 751. In each instance, conditioning the right to bring a § 1983 action on a favorable result in state litigation or federal habeas served the practical objective of preserving limitations on the availability of habeas remedies. Id.

Federal petitions for habeas corpus may be granted only after other avenues of relief have been exhausted. 28 U.S.C. § 2254(b)(1)(A). See Rose v. Lundy, 455 U.S. 509 (1982). Prisoners suing under § 1983, in contrast, generally face a substantially lower gate, even with the requirement of the Prison Litigation Reform Act of 1995 that administrative opportunities be exhausted first. 42 U.S.C. § 1997e(a); Muhammad v. Close, 540 U.S. at 751. Heck's requirement to resort to state litigation and federal habeas before § 1983 is not, however, implicated by a prisoner's challenge that threatens no consequence for his conviction or the duration of his sentence. Muhammad v. Close, 540 U.S. at 751.

In this case, plaintiff challenges the procedure and process surrounding his 2009 conviction, and seeks both money damages as well as a vacation of the underlying conviction. To the extent plaintiff seeks reversal of his conviction, release, and expungement of his record, his claims sound in habeas, and are barred pursuant to 28 U.S.C. § 2244, because plaintiff has already litigated the constitutionality of his 2009 drug conviction in this court. See Starr v. State of California, Case No. 2:12-cv-0457 KJN P. Plaintiff may also not seek damages in connection with the trial and conviction, because plaintiff's successful prosecution of these claims would necessarily imply the invalidity of his conviction and sentence, and he did not achieve a favorable termination in his prior habeas litigation. See Heck, 512 U.S. at 486-87.

Class Actions

To the extent plaintiff seeks to represent other inmates as plaintiffs in this suit, either in a class action or otherwise, plaintiff is informed that pro se plaintiffs cannot represent anyone but themselves in their lawsuits. See, e.g., C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir. 1987) (privilege of appearing pro se is personal to plaintiff, and he has no authority to appear as an attorney for others than himself); McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966) (same).

Respondeat Superior

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, e.g., Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011). "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).

Municipalities and other local government units are among those persons to whom 42 U.S.C. § 1983 applies. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). However, a local government unit may not be held responsible for the acts of its employees under a respondeat superior theory of liability. See, e.g., Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 403 (1997). Because vicarious liability is inapplicable to suits brought under 42 U.S.C. § 1983, a plaintiff must plead that each government official, through the official's own individual actions, has violated the Constitution. See Ashcroft v. Iqbal, 556 U.S. at 676.

Plaintiffs who seek to impose liability on local governments under § 1983 must prove that "action pursuant to municipal policy" caused the plaintiffs' injury. Connick v. Thompson, -- U.S. --, 131 S.Ct. 1350, 1359 (2011). Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law. Id.

In this case, plaintiff does not name as defendants the officers or doctors who harmed plaintiff. Instead he names as defendants the director of the CDCR and the warden of SCC, explicitly seeking to hold these defendants responsible for the actions of their employees.

Plaintiff does not provide any basis to determine if these individuals themselves subjected plaintiff to a deprivation of his constitutional rights, such as through a municipal policy or custom. Because plaintiff is accordingly attempting to hold defendants Cates and Chavez liable in respondeat superior, the complaint fails to state a colorable Eighth Amendment cause of action under 42 U.S.C. § 1983 against Cates and Chavez for the incidents in July, August, and September 2011.

Additionally, if plaintiff chooses to pursue any Eighth Amendment claims in connection with the incidents in July, August, and September 2011, he is advised that he must provide the court with sufficient factual detail to allow the court to determine what happened, and who, if anyone, is responsible. It is not enough to identify a date and a label, like "torture" or "slander" or "slavery" with a name - plaintiff must, at a minimum, describe what actions the putative defendant took and what injuries plaintiff sustained.

Remaining Claims

Plaintiff's remaining claims are dismissed with leave to amend. As to plaintiff's phone card claims, there is nothing in the current record to suggest that the named defendants are responsible for the costs of phone cards. There is also no suggestion that the costs, however high, violate a constitutional right personal to the plaintiff.

As to plaintiff's claims regarding law library access and copies, plaintiff has furnished the court with no factual basis on which to determine whether plaintiff himself was denied access. See also ECF No. 9.

Plaintiff's complaint will be dismissed with leave to amend. See 42 U.S.C. § 1997e(c). 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). Also, the complaint must allege in specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's 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, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

REQUEST FOR IMMEDIATE INJUNCTIVE RELIEF Plaintiff's allegations are additionally insufficient to support his requests for immediate injunctive relief. The standards governing the issuance of temporary restraining orders are "substantially identical" to those governing the issuance of preliminary injunctions. Stuhlbarg Intern. Sales Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832, 839 n. 7 (9th Cir. 2001). Therefore, "[a] plaintiff seeking a [TRO] must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Am. Trucking Ass'n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). A preliminary injunction is appropriate when a plaintiff demonstrates . . . "serious questions going to the merits and a hardship balance [] tips sharply toward the plaintiff, ... assuming the other two elements of the Winter test are also met." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). A TRO is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter, 555 U.S. at 22.

The Ninth Circuit has reiterated that under either formulation of the principles, if the probability of success on the merits is low, preliminary injunctive relief should be denied:

Martin explicitly teaches that "[u]nder this last part of the alternative test, even if the balance of hardships tips decidedly in favor of the moving party, it must be shown as an irreducible minimum that there is a fair chance of success on the merits."

Johnson v. California State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (quoting Martin v. International Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984).

As noted above, most of the injunctive relief plaintiff seeks is related to his conviction. These claims have no likelihood of success on the merits, as they are barred, either by Heck or by 28 U.S.C. § 2244.

Plaintiff also may not raise conviction-related claims, such as improperly enhanced sentences, on behalf of other prisoners as he is a non-attorney acting pro se, and may not represent anyone other than himself.

As to plaintiff's claims regarding phone cards or library access, plaintiff fails to provide the court with any factual background, much less that sufficient to warrant injunctive relief. See also ECF No. 9. Accordingly, the undersigned recommends that the request for a TRO and/or preliminary injunction be denied.

MOTION FOR APPOINTMENT OF COUNSEL Plaintiff moves for the appointment of counsel. ECF No. 3. The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, for the reasons set forth above, the court does not find the required exceptional circumstances. Plaintiff's request for the appointment of counsel will therefore be denied.


Plaintiff moves for a "speedy trial." ECF No. 8. Because this is a civil case to which the speedy trial rule does not apply, the court construes plaintiff's motion to be one to expedite this matter. The basis for plaintiff's request appears to be that he is ready to litigate, and that defendants have failed to respond to his complaint.

Plaintiff's motion for speedy trial is denied. The defendants are not served with the complaint until this court so orders, and, in this case, the court has not done so. Plaintiff has not cited any reason, such as imminent harm, which would support expedited consideration of his claims. Notably, the undersigned has additionally recommended that there is no basis on which to grant plaintiff temporary injunctive relief.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's request to proceed in forma pauperis (ECF No. 2) is granted;

2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees shall be collected and paid in accordance with this court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith;

3. Plaintiff's motion for appointment of counsel (ECF No. 3) is denied;

4. Plaintiff's motion for speedy trial (ECF No. 8) is denied;

5. The complaint is dismissed for the reasons discussed above, with leave to file an amended complaint within twenty-eight days from the date of service of this order. Failure to file an amended complaint will result in a recommendation that the action be dismissed; and

IT IS HEREBY RECOMMENDED that plaintiff's request for a temporary restraining order, contained in his complaint, be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-eight (28) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within twenty-eight (28) days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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