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Bush v. Donovan

United States District Court, Ninth Circuit

June 11, 2013

ANTHONY ARTHUR BUSH, CDCR # J-85079, Plaintiff,
v.
R.J. DONOVAN WARDEN; A.L. COTA; FACILITY IV LIEUTENANT; FACILITY IV CAPTAIN; D.R. MORRIS; Defendants.

ORDER: (1) DISMISSING FIRST AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b); AND (2) GRANTING MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

GONZALO P. CURIEL, District Judge.

I.

PROCEDURAL HISTORY

On October 22, 2012, Anthony Arthur Bush ("Plaintiff"), an inmate currently incarcerated at Centinela State Prison located in Imperial, California, and proceeding in pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 Plaintiff did not prepay the $350 filing fee mandated by 28 U.S.C. § 1914(a); instead he filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). This Court granted Plaintiff's Motion for leave to proceed IFP and sua sponte dismissed his Complaint for failing to state a claim upon which relief could be granted. (ECF No. 3 at 9-10.) Plaintiff was given leave to file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. ( Id. ) Plaintiff then filed two Motions for Extension of Time to Amend Complaint. (ECF No. 5.) Both of these Motions were granted and Plaintiff filed his First Amended Complaint ("FAC") on March 20, 2013. (ECF No. 16.) Plaintiff has also filed a "Motion for Leave to Amend Complaint." (ECF No. 18.)

II.

SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b)

As the Court informed Plaintiff in the previous Order, the Prison Litigation Reform Act ("PLRA") obligates the Court to review complaints filed by all persons proceeding IFP and by those, like Plaintiff, who are "incarcerated or detained in any facility [and] accused of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms or conditions of parole, probation, pretrial release, or diversionary program, " "as soon as practicable after docketing." See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these provisions of the PLRA, the Court must sua sponte dismiss complaints, or any portions thereof, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (§ 1915(e)(2)); Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir. 2000) (§ 1915A); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (discussing § 1915A).

"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick, 213 F.3d at 447; Barren, 152 F.3d at 1194 (noting that § 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)"). In addition, the Court's duty to liberally construe a pro se's pleadings, see Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988), is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). However, in giving liberal interpretation to a pro se civil rights complaint, the court may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.

A. 42 U.S.C. § 1983 Liability

Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122 (2004); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).

B. Rule 8

As a preliminary matter, the Court finds that Plaintiff's First Amended Complaint fails to comply with Rule 8. Specifically, Rule 8 provides that in order to state a claim for relief in a pleading it must contain "a short and plain statement of the grounds for the court's jurisdiction" and "a short and plain statement of the claim showing that the pleader is entitled to relief." FED.R.CIV.P. 8(a)(1) & (2). Plaintiff has filed a seventy (70) page Complaint that contains very few factual allegations. Instead, Plaintiff devotes a majority of his First Amended Complaint to providing his legal analysis of various cases and statutes. As a result, as to many of his claims Plaintiff has failed to state a claim because he fails to provide the factual allegations that form the basis of his claims. If Plaintiff chooses to file an Amended Complaint, he must comply with Rule 8. He is further cautioned that he must also comply with Local Rule 8.2 which provides, in part, that prisoners must use the Court's form complaints and any additional pages are "not to exceed fifteen (15) in number." S.D. CIVLR 8.2.

B. Statute of Limitations

Once again, it appears that Plaintiff's claims fall outside the applicable statute of limitations. Because section 1983 contains no specific statute of limitation, federal courts apply the forum state's statute of limitations for personal injury actions. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Before 2003, California's statute of limitations was one year. Jones, 393 F.3d at 927. Effective January 1, 2003, the limitations period was extended to two years. Id. (citing CAL. CIV. PROC. CODE § 335.1). The two-years ...


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