Opinion
No. 2:16-cv-1927 KJN P
09-09-2016
SHAHEED SCOTT, SR., Plaintiff, v. ROBERT W. FOX, et al., Defendants.
ORDER
Plaintiff is a former state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and paid the court's filing fee. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).
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 or malicious," that 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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
Plaintiff's complaint seeks damages for allegedly illegal confinement which resulted from a delay in his release to parole. He claims that this delay violates his right to due process, equal protection, and constitutes cruel and unusual punishment. A complaint must be dismissed for failure to state a claim if "judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence . . . unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Heck v. Humphrey, 512 U.S. 477, 487 (1994). "[A] challenge to the procedures used in the denial of parole necessarily implicates the validity of the denial of parole and, therefore, the prisoner's continuing confinement." Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997). While plaintiff has not been denied parole, he alleges that his release on parole was delayed. See Scott v. Urlich, 370 Fed. App'x 970, 970-71 (10th Cir. 2010) ("[t]he rule in Heck . . . applies to 'proceedings that call into question the fact or duration of parole or probation. . .'", and the district court concluded that -- absent any indication that the decision to delay Mr. Scott's release on parole had been invalidated -- he could "not recover damages for the claims he [raised] . . . because those claims challenge the validity of the decision to delay his release on parole.")
Plaintiff's success on his claim in this court necessarily would imply the invalidity of his extended confinement. Thus, unless he can show that the remedy of habeas corpus is unavailable through no fault of his own, this action must be dismissed. See Cunningham v. Gates, 312 F.3d 1148, 1153 n.3 (9th Cir. 2002) (Heck bar applies where plaintiff could have sought habeas relief but did not). To proceed on this claim, plaintiff must demonstrate that this extended confinement already has been invalidated or that habeas procedures are unavailable to him through no fault of his own.
Therefore, to proceed plaintiff must file an amended complaint. Any amended complaint must show that the federal court has jurisdiction and that plaintiff's action is brought in the right place, and that plaintiff is entitled to relief if plaintiff's allegations are true. Plaintiff must identify as a defendant only persons who personally participated in a substantial way in depriving plaintiff of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, participates in another's act or omits to perform an act he is legally required to do that causes the alleged deprivation). For example, prisoners have no Fourteenth Amendment liberty interest in a right to appeal adverse decisions by prison authorities. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) ("There is no legitimate claim of entitlement to a grievance procedure."). In Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003), the Ninth Circuit confirmed that a prisoner may not challenge an administrative disciplinary appeals process on Due Process grounds, confirming that "inmates lack a constitutional entitlement to a specific prison grievance procedure." Id. Thus, plaintiff cannot state cognizable due process claims against defendants Artis and Briggs based on their role in addressing plaintiff's administrative appeals. ////
Moreover, plaintiff may not file a petition for writ of habeas corpus in this action to convert it to an action under 28 U.S.C. § 2254, unless he has first exhausted his state court remedies. The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent's counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).
A habeas petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2).
Plaintiff is cautioned that the habeas corpus statute imposes a one year statute of limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one year period will start to run on the date on which the state court judgment became final by the conclusion of direct review or the expiration of time for seeking direct review, although the statute of limitations is tolled while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d). --------
If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This requirement is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.
In accordance with the above, IT IS HEREBY ORDERED that:
1. The Clerk of the Court is directed to remove the California Department of Corrections and Rehabilitation and the California Medical Facility set forth as defendants on the court's docket.
2. Plaintiff's complaint is dismissed.
3. Plaintiff is granted thirty days from the date of service of this order to file an amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number assigned this case and must be labeled "Amended Complaint"; plaintiff must file an original and two copies of the amended complaint; failure to file an amended complaint in accordance with this order will result in a recommendation that this action be dismissed.
4. The Clerk of the Court is directed to send plaintiff the forms for filing a civil rights complaint by a prisoner, and a petition for writ of habeas corpus. Dated: September 9, 2016
/s/_________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE /scot1927.14