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Thornton v. Penner

United States District Court, E.D. California

June 19, 2014

DON PENNER, Defendant


GARY S. AUSTIN, Magistrate Juge.

Plaintiff is a state hospital patient proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff is a patient in the custody of the California Department of Mental Health at Atascadero State Hospital. Plaintiff brings this civil rights action against a Fresno County Superior Court Judge.

"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)).

Plaintiff's statement of claim is a rambling, incoherent statement that appears to refer to underlying criminal proceedings in state court. Plaintiff fails to charge the named defendant, Superior Court Judge Don Penner, with any conduct.

"Judges are absolutely immune from damage actions for judicial acts taken with the jurisdiction of their courts.... A judge loses absolute immunity only when the judge acts in the clear absence of all jurisdiction or performs an act that is not judicial in nature." Schucker v. Rockwood , 846 F.2d 1202, 1204 (9th Cir. 1988)(per curiam)(citations omitted); see also Mireles v. Waco , 502 U.S. 9 (1991)(per curiam); Pierson v. Ray , 386 U.S. 547, 553-54 (1967); Brown v. Cal. Dep't of Corr. , 554 F.3d 747, 750 (9th Cir. 2009)(absolute immunity is generally accorded to judges functioning in their official capacities); Miller v. Davis , 521 F.3d 1142, 1145 (9th Cir. 2008); Sadoski v. Mosley , 435 F.3d 1076, 1079 (9th Cir. 2006); Mishler v. Clift , 191 F.3d 998, 1003 (9th Cir. 1999).

Here, Plaintiff has failed to charge Judge Penner with any extra-judicial conduct. Although Plaintiff fails to charge Judge Penner with any specific conduct, the implied conduct in the complaint is judicial in nature. There are not allegations that Judge Penner engaged in any actionable conduct.

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). Plaintiff has failed to do so here. The complaint should therefore be dismissed. Plaintiff will, however, be granted leave to file an amended complaint.

Plaintiff need not, however, set forth legal arguments in support of his claims. In order to hold an individual defendant liable, Plaintiff should state clearly, in his or her own words, what happened. Plaintiff must describe Judge Penner did to violate the particular right described by Plaintiff. Plaintiff has failed to do so here.

The Court has screened Plaintiff's complaint and finds that it does not state any claims Upon which relief may be granted under section 1983. The Court will provide Plaintiff with the opportunity to file an amended complaint curing the deficiencies identified by the Court in this order. Noll v. Carlson , 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is cautioned that he may not change the nature of this suit by adding new, unrelated claims in his amended complaint. George, 507 F.3d at 607 (no "buckshot" complaints).

Plaintiff's amended complaint should be brief, Fed.R.Civ.P. 8(a), but must state what each named defendant did that led to the deprivation of Plaintiff's constitutional or other federal rights, Hydrick , 500 F.3d at 987-88. Although accepted as true, the "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level...." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 554 (2007) (citations omitted).

Finally, Plaintiff is advised that an amended complaint supercedes the original complaint, Forsyth v. Humana, Inc. , 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh , 814 F.2d 565, 567 (9th Cir. 1987), and must be "complete in itself without reference to the prior or superceded pleading, " Local Rule 15-220. Plaintiff is warned that "[a]ll causes of action alleged in an original complaint which are not alleged in an amended complaint are waived." King , 814 F.2d at 567 (citing to London v. Coopers & Lybrand , 644 F.2d 811, 814 (9th Cir. 1981)); accord Forsyth , 114 F.3d at 1474.

Accordingly, based on the foregoing, it is HEREBY ORDERED that:

1. Plaintiff's complaint is dismissed, with leave to amend, for failure to state a claim;
2. The Clerk's Office shall send to Plaintiff a complaint form;
3. Within thirty (30) days from the date of service of this order, Plaintiff shall file an amended complaint;
4. Plaintiff may not add any new, unrelated claims to this action via his amended complaint and any attempt to do so will result in an order striking the amended complaint; and
5. If Plaintiff fails to file an amended complaint, the Court will recommend that this action be dismissed, with prejudice, for failure to state a claim.


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