United States District Court, E.D. California
DAMOUS D. NETTLES, Plaintiff,
LOPEZ, et al., Defendants.
ORDER DISMISSING PETITION WITH LEAVE TO AMEND (DOC.
1) 30-DAY DEADLINE
Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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).
Federal Rule of Civil Procedure 8(a)
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.
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.
"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.
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.
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.
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