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Teodocio Rubio, Sr v. Genaro Ramirez

April 19, 2013

TEODOCIO RUBIO, SR.,
PLAINTIFF,
v.
GENARO RAMIREZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER DISMISSING THE COMPLAINT WITH LEAVE TO AMEND (Doc. 1)

Plaintiff Teodocio Rubio, Sr., ("Plaintiff") is a state prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1). Plaintiff seeks monetary and injunctive relief in his complaint against the following defendants (1) Genaro Ramirez, a deputy district attorney of San Diego County, California; (2) Peter Labahn, a commissioner of the California Board of Parole Hearings ("BPH"); (3) R. Kevorkian, a BPH deputy commissioner; (4) Timothy O'Hara, a BPH presiding commissioner, and (5) John Denvir, a BPH deputy commissioner (collectively "BPH"). Id. at 1-3, 16-17. As is required by 28 U.S.C. § 1915(e)(2)(B), the Court now screens the complaint.

For the reasons set forth below, the complaint is DISMISSED with leave to amend.

I. SCREENING REQUIREMENT

Under 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a case in which the plaintiff proceeds in forma pauperis if the court determines that the case "fails to state a claim on which relief may be granted" or is "frivolous." A claim is frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to 2 contradict them." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). 3

II. PLEADING AND VENUE STANDARDS

A.Federal Rule of Civil Procedure 8(a)

Under Federal Rule of Civil Procedure 8(a), "[a] pleading that states a claim for relief must contain: (1) a short and plaint statement of the grounds for the court's jurisdiction, . . . ; (2) a short and 7 plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the 8 relief sought." Fed. R. Civ. P. 8(a). Each allegation must be simple, concise, and direct. Fed. R. Civ. 9 P. 8(d)(1). While a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal quotation marks and citations omitted).

"Pro se documents are to be liberally construed" and "'must be held to 'less stringent standards than formal pleadings drafted by lawyers.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "[They] can only be dismissed for failure to state a claim if it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. In analyzing a pro se pleading, the Court sets conclusory factual allegations aside, accepts all non-conclusory factual allegations as true, and determines whether those non-conclusory factual allegations accepted as true state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 1949 (internal quotation marks and citation omitted). In determining plausibility, the Court is permitted "to draw on its judicial experience and common sense." Id. at 1950.

B.Venue in 42 U.S.C § 1983 Matters

Venue in 42 U.S.C. § 1983 actions are governed by 28 U.S.C. § 1391(b). See Williams v. Rodriguez, Case No. 1:09-CV-01882-LJO, 2012 WL 6085267 * 2 (E.D. Cal. 2012). In pertinent part, 28 U.S.C. § 1391(b) permits a matter to be brought in "(1) a judicial district where any defendant resides, if all defendants reside in the same State [or] (2) a judicial district in which a substantial part 2 of the events or omissions giving rise to the claim occurred." 3

Plaintiff's complaint omits explicit facts to suggest that venue is proper before the Court.

However, given the facts Plaintiff has alleged, it is presumed that all Defendants reside in the State of 5 California. It is also presumed that at the time of the October 2, 2012, BPH hearing, Plaintiff was 6 incarcerated at Corcoran State Prison in Kings County, California, which is located within the Court's 7 judicial district. 28 U.S.C § 84 (b). Finally, it is noted that the BPH is headquartered in Sacramento, 8

California, which is also situated within the Court's judicial district. Id. Therefore, the Court finds 9 venue proper and screens the complaint.*fn1

III. PLAINTIFF'S COMPLAINT

Plaintiff is a state prisoner incarcerated at Corcoran State Prison, located in Corcoran, California. (Doc. 1 at 1). Plaintiff appears to be serving a life sentence, but may be eligible for parole. Id. at 12, ¶ 1. Plaintiff sues all Defendants in their individual and official capacities. Id. at 4. Plaintiff avers as follows:

On October 2, 2012, Defendants Labahn and Kevorkian presided over a BPH hearing in which the BPH addressed Plaintiff's eligibility for parole. See generally,Id. at 6, ¶ 1. At the hearing, Defendant Ramirez testified: (1) that Plaintiff admitted to San Diego law enforcement officials that he committed murder in Mexico prior to his incarceration; (2) that Plaintiff attempted to murder an entire household on September 23, 1995, and (3) that Plaintiff had a general propensity towards violence. Id. at 6, 7 ¶¶ 1-4. Defendant Ramirez employed the assistance of a "jailhouse snitch" to collect this evidence against Plaintiff. Id. at 13, ¶ 4.

Plaintiff avers that Defendant Ramirez's testimony was false. Id. at 7, ¶ 6. The false testimony reduced the possibility that Plaintiff would be released on parole. Id. at 8, ¶ 9. Defendants Labahn and Kevorkian considered the fact that Plaintiff was not actually convicted of murder or attempted murder in Mexico. Id. at 8-9, ¶¶ 10. However, Defendants Labahn and Kevorkian still ...


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