Opinion
Case No.: 1:16-cv-00379 JLT (PC)
03-24-2016
GERROD L. HERNDON, Plaintiff, v. STATE SUPREME COURT CALIFORNIA, Defendant.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
Gerrod Herndon claims the trial court imposed a sentence that was too harsh after he was convicted of an unknown crime. Because this claim fails to state a cause of action, the Court ORDERS that Plaintiff's complaint be DISMISSED with leave to amend.
I. SCREENING REQUIREMENT
Because Plaintiff is seeking redress from governmental employees in a civil action, the Court is required to screen his complaint in order to identify cognizable claims. 28 U.S.C. § 1915A(a)-(b). The Court shall "dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
II. COMPLAINT
Plaintiff's complaint fails to provide any explanation for the basis for this litigation other than "use enhancement to push extra time in custody" and "the government (unintelligible) sentenced to far to much time. Disrespect and made mockery out of me. Modern day slavery." (Doc. 1 at 1, 3) As relief he states, "Really should not be hurt. Restore to original form. Vacate all future custody matters. Money for damages, etc." Id. at 3.
III. PLEADING STANDARDS
"Pro se documents are to be liberally construed" and "'must be held to 'less stringent standards than formal pleadings drafted by lawyers.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "[They] can only be dismissed for failure to state a claim if it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. Under Federal Rule of Civil Procedure 8(a), "[a] pleading that states a claim for relief must contain: (1) a short and plaint statement of the grounds for the court's jurisdiction, . . . ; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought." Fed. R. Civ. P. 8(a). Each allegation must be simple, concise, and direct. Fed. R. Civ. P. 8(d)(1). While a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal quotation marks and citations omitted).
In analyzing a pleading, the Court sets conclusory factual allegations aside, accepts all non-conclusory factual allegations as true, and determines whether those non-conclusory factual allegations accepted as true state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 676-684 (2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." (Id. at 678) (internal quotation marks and citation omitted). In determining plausibility, the Court is permitted "to draw on its judicial experience and common sense." Id. at 679.
Here, Plaintiff fails to set forth any factual allegations that would give rise to this Court's jurisdiction. The fact that he disagrees with the length of his criminal sentence is not actionable in this forum. Rather, he must file a direct appeal and could file collateral attacks on the sentence via petitions for habeas corpus but may file such an action in this court only if he has exhausted all remedies provided in state court. Then, he may raise only claims arising under federal law in this court. Thus, Plaintiff has failed to state a claim and the complaint must be dismissed.
Though Plaintiff does not cite to 42 U.S.C. § 1983-or any other statute under which he seeks to proceed—under 42 U.S.C. § 1983, a plaintiff must show (i) that he suffered a violation of rights protected by the Constitution or created by federal statute, and (ii) that the violation was proximately caused by a person acting under color of state law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The causation requirement of § 1983 is satisfied only if a plaintiff demonstrates that a defendant did an affirmative act, participated in another's affirmative act, or omitted to perform an act which he was legally required to do that caused the deprivation complained of. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981) (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)).
Presuming Plaintiff intends to proceed under this statute, generally, a state agency is not a "person" under 42 U.S.C. § 1983. Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007). The Eleventh Amendment serves as a jurisdictional bar to suits brought by private parties against a state or state agency, unless the state consents to the suit. See Dittman v. California, 191 F.3d 1020, 1025-26 (9th Cir. 1999) ("In the absence of a waiver by the state . . . under the [E]leventh [A]mendment, agencies of the state are immune from private damage actions or suits for injunctive relief brought in federal court.") (internal quotations omitted). Similarly, suing a state official in his or her official capacity is analogous to suiting the state itself. Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007)(quoting Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989).
A narrow exception to this rule permits a litigant to seek injunctive or declaratory relief against a state official. Flint, 488 F.3d at 825. Given that Plaintiff seeks monetary damages, (Doc. 1 at 3), this exception is inapplicable to the matter at bar.
Plaintiff brings suit against the California Supreme Court, a state agency, which is immune from suit under the Eleventh Amendment. See e.g., Allen v. California Dep't of Corr. & Rehab., Case Number 109-CV-00767-AWI-GSA, 2009 WL 4163510, at * 5 (E.D. Cal. 2009) report and recommendation adopted, Case Number 109-CV-00767-AWI -GSA (PC), 2009 WL 5197855 (E.D. Cal. 2009) (CDCR held immune from § 1983 suit). Thus, Plaintiff's claims are DISMISSED.
IV. LEAVE TO AMEND
Though the Court has serious doubts whether Plaintiff can state a claim, it will provide him a final opportunity to amend his pleading to cure the deficiencies noted in this order. See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987) ("A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.") (internal quotations omitted). In his first amended complaint, Plaintiff must address the deficiencies noted here. Plaintiff is advised that his failure to do so will result in an order dismissing this action.
Plaintiff is cautioned that in his first amended complaint, he may not change the nature of this suit by adding new, unrelated claims in his amended complaint. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints). Plaintiff is also advised that once he files his second amended complaint, his original pleadings are superceded and no longer serve any function in the case. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, the first amended complaint must be "complete in itself without reference to the prior or superceded pleading." Local Rule 220. "All causes of action alleged in an original complaint which are not [re-]alleged in an amended complaint are waived." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citations omitted).
Finally, the first amended complaint, including any attached documents, SHALL NOT exceed 20 pages. The first amended complaint SHALL contain a plain and concise statement of facts in compliance with Fed. R. Civ. P. 8(a).
ORDER
In accordance with the foregoing, it is HEREBY ORDERED that:
1. The complaint is DISMISSED with leave to amend;
2. Plaintiff is GRANTED 21 days from the date of service of this Order to file a first amended complaint attempting to cure the deficiencies identified by the Court in this screening order.
3. The Clerk of the Court is DIRECTED to send Plaintiff the form complaint for use in a civil rights action; and
4. Plaintiff is cautioned that his failure to comply with this Order will result in a recommendation that this action be dismissed.IT IS SO ORDERED.
Dated: March 24 , 2016
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE