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Nettles v. Lopez

United States District Court, E.D. California

May 5, 2017

DAMOUS D. NETTLES, Plaintiff,
v.
LOPEZ, et al., Defendants.

          ORDER DISMISSING PETITION WITH LEAVE TO AMEND (DOC. 1) 30-DAY DEADLINE

          Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE.

         Plaintiff filed this action as a petition for writ of habeas corpus under 28 U.S.C. § 2254. The Court granted the respondent's motion to dismiss and Plaintiff appealed. On July 26, 2016, the Ninth Circuit Court of Appeals agreed with this Court that this action cannot proceed as a petition for writ of habeas corpus because success of the merits would not necessarily impact the length of the petitioner's sentence. (Doc. 53.) However, the Court reversed the judgment and remanded the matter to allow it to be re-characterized as an action under 42. U.S.C. § 1983, if after advice of the risks and benefits, the petitioner wished to proceed in that manner. (Id.)

         The Court provided the Plaintiff this advice and he chose to have the action recharacterized under § 1983. (Docs. 55, 62, 64.) The action is now DISMISSED with leave to amend.

         A. Screening Requirement

         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, malicious, 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); 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). If an action is dismissed on one of these three bases, a strike is imposed per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has not alleged imminent danger of serious physical injury does not qualify to proceed in forma pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015).

         B. Plaintiff's Claims

         Because this action was originally filed under § 2254, the Court is unsure what claims Plaintiff desires to attempt to state under § 1983. However, he is provided the pleading requirements and the legal standards for the claims that appear most applicable based on the factual allegations gleaned from his petition under § 2254. Plaintiff may be able to state cognizable claims under § 1983 and is given opportunity to amend his pleading. Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016).

         C. Pleading Requirements

         1. Federal Rule of Civil Procedure 8(a)

         “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. Pro. 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. Pro. 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.

         Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.'” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.

         While "plaintiffs [now] face a higher burden of pleadings facts . . ., "Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 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), and courts are not required to indulge unwarranted inferences, Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with' a defendant's liability” fall short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949; Moss, 572 F.3d at 969.

         If he chooses to file a first amended complaint, Plaintiff should endeavor to make it as concise as possible. He should must state which of his constitutional rights he feels were violated by each Defendant why he thinks so.

         2. Linkage Requirement

         To state a claims under 42 U.S.C. § 1983, there must be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth Circuit has held that A[a] person, subjects" another to the deprivation of a constitutional right, within the meaning of section 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). In order to state a claim for relief under section 1983, Plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of Plaintiff's federal rights.

         Plaintiff must clearly state which Defendant(s) he feels are responsible for each violation of his constitutional rights and their factual bases such that his complaint puts each Defendant on notice of Plaintiff's claims against him or her. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004).

         3. ...


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