United States District Court, E.D. California
ORDER AND RECOMMENDATION OF DISMISSAL PURSUANT TO 28
U.S.C. § 1915A FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF COULD BE GRANTED
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. After a dismissal
pursuant to 28 U.S.C. § 1915A, he has filed an amended
complaint which is now before the court for screening.
courts must engage in a preliminary screening of cases in
which prisoners seek redress from a governmental entity or
officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The court must identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if
the complaint “is frivolous, malicious, or fails to
state a claim upon which relief may be granted, ” or
“seeks monetary relief from a defendant who is immune
from such relief.” Id. § 1915A(b).
first amended complaint, plaintiff alleged that he was
erroneously placed on parole, falsely imprisoned for
purported parole violations, and subsequently appointed a
public defender and discharged from parole due to this court
error. ECF No. 7. In dismissing that complaint with leave to
amend, the court informed plaintiff of the following:
To state a claim under 42 U.S.C. § 1983, plaintiff must
allege two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged violation was committed by a person
acting under the color of state law. West v. Atkins,
487 U.S. 42, 48 (1988). An individual defendant is not liable
on a civil rights claim unless the facts establish the
defendant’s personal involvement in the constitutional
deprivation or a causal connection between the
defendant’s wrongful conduct and the alleged
constitutional deprivation. See Hansen v. Black, 885
F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588
F.2d 740, 743-44 (9th Cir. 1978). That is, plaintiff may not
sue any official on the theory that the official is liable
for the unconstitutional conduct of his or her
subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). He must identify the particular person or persons who
violated his rights. He must also plead facts showing how
that particular person was involved in the alleged violation.
Here, plaintiff names approximately fifteen defendants, but
none of those defendants are adequately linked to his claims.
“The Constitution permits states to deprive a person of
liberty as long as the person first receives due process. The
fundamental requirement of due process is the opportunity to
be heard at a meaningful time and in a meaningful
manner.” Stein v. Ryan, 662 F.3d 1114, 1119
(9th Cir. 2011) (internal quotations and citations omitted).
“[A]n individual has a liberty interest in being free
from incarceration absent a criminal conviction.”
Lee v. City of Los Angeles, 250 F.3d 668, 683 (9th
Cir. 2001). “Thus, the loss of liberty caused by an
individual’s mistaken incarceration after the lapse of
a certain amount of time gives rise to a claim under the Due
Process Clause of the Fourteenth Amendment.”
Id. Such a claim may arise when the defendants knew
or should have known the detainee was entitled to release and
(1) the circumstances indicated to the defendants that
further investigation was warranted, or (2) the defendants
denied the detainee access to the courts for an extended
period of time. Id.; Rivera v. Cty. of Los
Angeles, 745 F.3d 384, 391 (9th Cir. 2014). And
“[s]ince imprisonment is punitive, officials who detain
a person may violate that person’s rights under the
Eighth Amendment if they act with deliberate indifference to
the prisoner’s liberty interest.” Id. at
Plaintiff does not plead any facts showing that any named
defendant knew or should have known that he should not have
been placed on parole (or probation). He also fails to plead
facts showing circumstances that should have prompted any
defendant to investigate the propriety of his status as a
parolee, or that he was denied access to the courts to
challenge the propriety himself. Even if he had made such
allegations, plaintiff still fails to state a procedural due
process claim because he appears to have received the process
that was due. He alleges that he was present in court when
the judge ordered him to report to parole following his
release. Thus, although the judge may have erred, plaintiff
appears to have had a meaningful opportunity to be heard
before being placed on parole. When his public defender
realized the court’s error in October of 2013,
plaintiff promptly appeared in court and was immediately
discharged from parole.
In addition, plaintiff cannot state a proper state law tort
claim because he has not alleged compliance with the
California Torts Claims Act, also known as the Government
Claims Act or GCA. The GCA requires that a party seeking to
recover money damages from a public entity or its employees
submit a claim to the entity before filing suit in
court, generally no later than six months after the cause of
action accrues. Cal. Gov’t Code §§ 905,
911.2, 945, 950.2 (emphasis added). Timely claim presentation
is not merely a procedural requirement of the GCA but is an
element of a plaintiff’s cause of action. Shirk v.
Vista Unified Sch. Dist., 42 Cal.4th 201, 209 (2007).
Thus, when a plaintiff asserts a claim subject to the GCA, he
must affirmatively allege compliance with the claim
presentation procedure, or circumstances excusing such
compliance, in his complaint. Id. The requirement
that a plaintiff asserting claims subject to the GCA must
affirmatively allege compliance with the claims filing
requirement applies in federal court as well.
Karim-Panahi v. Los Angeles Police Dep’t, 839
F.2d 621, 627 (9th Cir. 1988). Plaintiff concedes that he did
not file a timely claim in accordance with the GCA. ECF No. 7
at 11-12. Thus, any purported state law claims must be
Plaintiff will be granted leave to file an amended complaint
to allege a cognizable legal theory against a proper
defendant and sufficient facts in support of that cognizable
legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27
(9th Cir. 2000) (en banc) (district courts must afford pro se
litigants an opportunity to amend to correct any deficiency
in their complaints). Should plaintiff choose to file an
amended complaint, the amended complaint shall clearly set
forth the claims and allegations against each defendant.
ECF No. 12 at 4-6.
second amended complaint (ECF No. 18), plaintiff names
Governor Brown as the sole defendant because “[h]e is
legally responsible for the flawed laws her[e] in the State
of California.” ECF No. 18 at 2. He again alleges that
he should not have been placed on parole and was falsely
imprisoned as a result. He also complains generally of prison
overcrowding and inadequate medical and mental health care.
The amended complaint fails to cure the defects identified in
the court’s initial screening order because it fails to
plead facts sufficient to support a due process claim based
on the alleged court error and also fails to link the named
defendant to the alleged deprivations of his rights.
Moreover, prison overcrowding, by itself, is not a
constitutional violation. Doty v. County of Lassen,
37 F.3d 540, 545 n.1 (9th Cir. 1994); Hoptowit v.
Ray, 682 F.2d 1237, 1249 (9th Cir. 1982).
notice of the complaint’s deficiencies and an
opportunity to amend, plaintiff is unable to state a
cognizable claim for relief. Therefore, this action should be
dismissed without further leave to amend for failure to state
a claim upon which relief could be granted. See Lopez v.
Smith , 203 F.3d 1122, 1129 (9th Cir. 2000)
(“Under Ninth Circuit case law, district courts are
only required to grant leave to amend if a complaint can
possibly be saved. Courts are not required to grant leave to
amend if a complaint lacks merit entirely.”); see
also Doe v. United States, 58 F.3d 494, 497 (9th Cir.
1995) (“[A] district court should grant leave to amend
even if no request to amend the pleading was made, unless it
determines that the pleading could not be cured by the
allegation of other facts.”).
IT IS HEREBY ORDERED that the Clerk randomly assign a United
States District Judge to this action.
IT IS HEREBY RECOMMENDED that the second amended complaint
(ECF No. 18) be dismissed for failure to state a claim upon
which relief may be granted ...