Lawag

• Court: District Court, N.D. California
• Decided: October 13, 2022
• Docket: 4:22-cv-04879
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 In HENRY CORDOVA LAWAG. Case No. 22-cv-04879-HSG

8 ORDER OF DISMISSAL 9 10 11

12 13 Plaintiff, an inmate housed at Valley State Prison, has filed this pro se action. His 14 complaint (Dkt. No. 8) is now before the Court for review under 28 U.S.C. § 1915A. He has been 15 granted leave to proceed in forma pauperis in a separate order. 16 DISCUSSION 17 A. Standard of Review 18 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 19 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 20 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 21 that 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. See 28 U.S.C. § 1915A(b)(1), 23 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 24 989, 993 (9th Cir. 2020). 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.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 27 necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is and the 1 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 2 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 3 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 4 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 5 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 6 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that 7 the alleged violation was committed by a person acting under the color of state law. See West v. 8 Atkins, 487 U.S. 42, 48 (1988). 9 B. Procedural History 10 On August 25, 2022, the Court received a complaint form from Plaintiff that had Plaintiff’s 11 information filled in under “Plaintiff” and was signed by Plaintiff. However, the complaint was 12 otherwise blank. Dkt. No. 1. Plaintiff also submitted a letter stating that he wished to file a case 13 for “relief of confinement and reward benefits” and to “redeem the Bond.” Dkt. No. 2. Because 14 these two documents indicated an intent to file an action in this court, the Court opened an action 15 that same day and sent Plaintiff forms indicating that his action was deficient because his 16 complaint form was blank and because he had failed to either file an application to proceed in 17 forma pauperis or pay the filing fee. Dkt. Nos. 3, 5. 18 On September 15, 2022, Plaintiff filed a complaint. Dkt. No. 8 (“Compl.”).1 In the 19 complaint, Plaintiff lists himself and his daughter, Michelle A. Lawag, as plaintiffs. Compl. at 1- 20 2. Ms. Lawag has not signed the complaint and there is no indication that she has consented to 21 bring this action or is aware of this action. In Section 3 of the form complaint, the Statement of 22 Claim, Plaintiff writes, “Later that day 4-14-2015 I was alone in her apartment I heard knocking 23 on the door it was two cops and he said your (sic) under arrest.” Compl. at 2. In Section 4 of the 24 form complaint, Relief, Plaintiff writes, “I accept your charge for value and consideration in return 25 for post settlement and closure of the account.” Compl. at 3. 26

27 1 Plaintiff submitted two copies of his complaint. One copy is docketed at Dkt. No. 8 and the 1 Plaintiff has also filed three letters with the Court. Dkt. Nos. 6, 7, 9. Dkt. No. 6 asks 2 whether he is required to sign the magistrate judge consent form and includes an unsigned consent 3 form. Dkt. No. 6. Dkt. No. 7 expresses misgivings about proceeding in this action and informs 4 the Court that Plaintiff has a petition pending in the Santa Maria division of the Santa Barbara 5 Superior Court and that he is awaiting a Cal. Penal Code § 1170.91(b) re-sentencing hearing. Dkt. 6 No. 7. Dkt. No. 9 is titled “For IV Statement of Claim,” and appears to seek to add details to the 7 complaint. In Dkt. No. 9, Plaintiff alleges that his public defender was a bad lawyer; that he did 8 not molest his granddaughters, that he only pleaded guilty to child molestation because his 9 daughter Michelle wanted him to; that Michelle wishes to contact him but is unable to do so; and 10 that he seeks early release, and freedom and compensation for his mental health and his image 11 being ruined. Dkt. No. 9. 12 C. Dismissal with Prejudice 13 This action is dismissed because Plaintiff has not alleged a violation of the federal 14 Constitution or federal law, as required to state a claim under 42 U.S.C. § 1983.2 See West, 487 15 U.S. at 48. 16 This dismissal is with prejudice for the following reason. According to letters filed by 17 Plaintiff, Plaintiff seeks early or immediate release. In other words, Plaintiff is challenging his 18 conviction or the length of his confinement. Habeas is the “exclusive remedy” for the prisoner 19 who seeks “‘immediate or speedier release’” from confinement. Skinner v. Switzer, 562 U.S. 521, 20 533-34 (2011) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)); see also Hill v. 21 McDonough, 547 U.S. 573, 579 (2006) (“‘Challenges to the lawfulness of confinement or to 22 particulars affecting its duration are the province of habeas corpus.’”) (quoting Muhammad v. 23 Close, 540 U.S. 749, 750 (2004)). If Plaintiff is seeking either early or immediate release, he must 24 seek such relief in a petition for a writ of habeas corpus. This action is DISMISSED with 25 prejudice because this deficiency could not possibly be cured by allegations of other facts. See 26

27 2 The complaint also suffers from the following deficiencies. The complaint fails to name a 1 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (district court should grant leave to amend 2 || unless pleading could not possibly be cured by allegations of other facts). 3 CONCLUSION 4 For the foregoing reasons, the Court DISMISSES this action with prejudice. The Clerk is 5 directed to send Plaintiff two copies of the Court’s form petition for a writ of habeas corpus. The 6 || Clerk shall terminate all pending motions as moot, enter judgment in favor of Defendant and 7 against Plaintiff, and close the case. 8 IT IS SO ORDERED. 9 || Dated: 10/13/2022 10 7 Haspurred Z Mh, ob. HAYWOOD S. GILLIAM, JR. I United States District Judge a 12

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