Cervantes v. Burciaga

• Court: District Court, N.D. California
• Decided: November 13, 2019
• Docket: 1:19-cv-06318
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 RAUL CERVANTES, Case No. 19-cv-06318-RMI

9 Plaintiff, ORDER OF DISMISSAL WITH LEAVE 10 v. TO AMEND

11 BURCIAGA, et al., Re: Dkt. No. 2 12 Defendants.

13 14 Plaintiff, a state prisoner, filed a pro se civil rights complaint under 42 U.S.C. § 1983. The 15 court granted his motion for leave to proceed in forma pauperis. (Dkt. 15). 16 DISCUSSION 17 Standard of Review 18 Federal courts must engage in a preliminary screening of cases in which prisoners seek 19 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 20 1915A(a). In its review, the court must identify any cognizable claims, and dismiss any claims 21 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 22 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se 23 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 24 Cir. 1990). 25 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 26 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the statement 27 need only ‘give the defendant fair notice of what the . . . . claim is and the grounds upon which it 1 a claim, a complaint “does not need detailed factual allegations, . . . a plaintiff's obligation to 2 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and 3 a formulaic recitation of the elements of a cause of action will not do. . . . factual allegations must 4 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 5 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer “enough facts to state a 6 claim to relief that is plausible on its face.” Id. at 570. The United States Supreme Court has 7 recently explained the “plausible on its face” standard of Twombly: “While legal conclusions can 8 provide the framework of a complaint, they must be supported by factual allegations. When there 9 are well-pleaded factual allegations, a court should assume their veracity and then determine 10 whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 11 (2009). 12 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 13 that a right secured by the Constitution or laws of the United States was violated, and (2) that the 14 alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 15 487 U.S. 42, 48 (1988). 16 Legal Claims 17 Plaintiff has submitted several filings with a wide variety of claims. It is not clear what 18 claims Plaintiff wishes to make, and thus, the complaint is dismissed with leave to amend to 19 provide more information and a clearer recitation of the allegations. Plaintiff’s most recent filing 20 (dkt. 12) appears to concern the percentage of funds being taken out of Plaintiff’s prison trust 21 account for court filings. Plaintiff names as defendants a correctional officer and a deputy attorney 22 general who were involved in a prior lawsuit. 23 Plaintiff is informed that “the Supreme Court has determined that certain government 24 officials require absolute immunity from liability in order to enable them to function 25 independently and effectively, without fear of intimidation or harassment. Accordingly, the Court 26 has granted absolute immunity to . . . judges, prosecutors, . . . and officials performing 27 quasijudicial functions.” Fry v. Melaragno, 939 F.2d 832, 835-36 (9th Cir. 1991) (internal 1 the Ninth Circuit has held that an attorney general or deputy attorney general has absolute 2 immunity, except they “are not immune from any actions that are wholly unrelated to or outside of 3 their official duties.” Bly–Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001); see also Fry, 4 939 F.2d at 837 (government lawyers are absolutely immune for actions “intimately” or “closely” 5 associated with judicial process). “Whether the government attorney is representing the plaintiff or 6 the defendant, or is conducting a civil trial, criminal prosecution or agency hearing, absolute 7 immunity is necessary to assure that . . . advocates . . . can perform their respective functions 8 without harassment or intimidation.” Id. (citation omitted). 9 The complaint is dismissed with leave to amend for Plaintiff to present his allegations in 10 one filing. He must identify specific defendants and describe how they violated his constitutional 11 rights. If Plaintiff seeks relief against the deputy attorney general, he must demonstrate why 12 immunity does not apply and how the claim regarding his prison trust account presents a federal 13 claim. Plaintiff should also describe where the alleged incidents occurred. If these events occurred 14 while Plaintiff has been incarcerated in California State Prison Los Angeles, then this action will 15 be transferred. 16 CONCLUSION 17 Plaintiff’s motion for an extension (dkt. 2) is DENIED. The complaint is DISMISSED 18 with leave to amend in accordance with the standards set forth above. The amended complaint 19 must be filed within twenty-eight (28) days of the date this order is filed and must include the 20 caption and civil case number used in this order and the words AMENDED COMPLAINT on the 21 first page. Because an amended complaint completely replaces the original complaint, Plaintiff 22 must include all the claims he wishes to present in it. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 23 (9th Cir. 1992). He may not incorporate material from the original complaint by reference. Failure 24 to amend within the designated time will result in the dismissal of this case. 25 Additionally, it is the plaintiff’s responsibility to prosecute this case. Plaintiff must keep 26 the court informed of any change of address by filing a separate paper with the clerk titled “Notice 27 of Change of Address,” and must comply with the court's orders in a timely fashion. Failure to do 1 Civil Procedure 41(b). 2 IT IS SO ORDERED. 3 Dated: November 13, 2019 4 5 RQBERT M. ILLMAN 6 United States Magistrate Judge 7 8 9 10 11 a 12

13 14 © 15 16

= 17

Z 18 19 20 21 22 23 24 25 26 27 28