(PC) Hicks v. Covello

• Court: District Court, E.D. California
• Decided: January 24, 2023
• Docket: 2:22-cv-00903
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARYL HICKS, No. 2:22-cv-0903 KJN P 12 Plaintiff, 13 v. ORDER 14 PATRICK COVELLO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to 18 42 U.S.C. § 1983, and is proceeding in forma pauperis. This proceeding was referred to this court 19 pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff’s amended complaint is now 20 before the court. As discussed below, plaintiff’s amended complaint is dismissed with leave to 21 amend. 22 Screening Standards 23 The court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 25 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 26 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 27 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 28 //// 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 3 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 6 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 7 Cir. 1989); Franklin, 745 F.2d at 1227. 8 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 9 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 10 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 11 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 12 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 13 this standard, the court must accept as true the allegations of the complaint in question, Hosp. 14 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 15 most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. 16 McKeithen, 395 U.S. 411, 421 (1969). 17 The Civil Rights Act 18 To state a claim under § 1983, a plaintiff must demonstrate: (1) the violation of a federal 19 constitutional or statutory right; and (2) that the violation was committed by a person acting under 20 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 21 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the 22 facts establish the defendant’s personal involvement in the constitutional deprivation or a causal 23 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation. 24 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 25 (9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable 26 for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 27 (2009). The requisite causal connection between a supervisor’s wrongful conduct and the 28 violation of the prisoner’s constitutional rights can be established in a number of ways, including 1 by demonstrating that a supervisor’s own culpable action or inaction in the training, supervision, 2 or control of his subordinates was a cause of plaintiff’s injury. Starr v. Baca, 652 F.3d 1202, 3 1208 (9th Cir. 2011). 4 Discussion 5 The sole defendant identified in the caption of plaintiff’s complaint is Warden Patrick 6 Covello. Fed. R. Civ. P. 10. Plaintiff does not include a section identifying each named 7 defendant and providing his or her address for purposes of service of process. 8 Plaintiff includes no charging allegations as to defendant Covello. Moreover, plaintiff 9 cannot state a civil rights claim against defendant Covello based solely on his role as warden. 10 Iqbal, 556 U.S. at 679. 11 Plaintiff’s purported amended complaint explains why his prison sentence is too long 12 because he should receive benefit of Proposition 57 because he was convicted of a nonviolent 13 felony, that various rules violation reports also increased his sentence, and briefly recounts 14 various physical assaults by inmates and staff, including by Correctional Officer Gosai, who 15 plaintiff is suing in another case, Hicks v. Gosai, 20-2303 KJM JDP (E.D. Cal.), as well as 16 alleged mistreatment by a clinician. But plaintiff fails to specifically identify who he intends to 17 sue and for what alleged violation of his constitutional rights, and he fails to set forth any 18 requested relief. 19 Proposition 57 20 Plaintiff now informs the court that he was convicted of human trafficking, a nonviolent 21 felony, and has served his primary term. However, to the extent plaintiff again attempts to raise a 22 civil rights claim based on the refusal to provide him relief under Proposition 57, plaintiff’s 23 renewed effort fails. See Bisel v. Kernan, 2018 WL 11294697, at *7-10 (E.D. Cal. Aug. 17, 24 2018) (surveying cases challenging the failure to provide relief under Proposition 57 to inmates 25 convicted of nonviolent felonies). 26 Here, plaintiff was convicted of: 27 three counts of human trafficking of a minor [Cal. Penal Code § 236.1], four counts of unlawful sexual intercourse with a minor more 28 than three years his junior, one count of possession of a controlled 1 substance, one count of possession of a firearm by a felon, and three counts of furnishing a controlled substance to a minor. He was 2 sentenced to 19 years, four months in prison. 3 People v. Hicks, 17 Cal. App. 5th 496, 499, 225 Cal. Rptr. 3d 682, 688-89 (2017), as modified 4 (Nov. 17, 2017).1 On appeal, the state appellate court found that the trial court used a proper 5 basis to impose an aggravated sentence -- “prior convictions were numerous and of increasing 6 severity.” Id., 17 Cal. App. 5th at 512-13. The state appellate court also reiterated the trial 7 court’s reasons for imposing aggravated concurrent terms under Cal. Rules of Court 4.421(b)(2). 8 Hicks, 17 Cal. App. 5th at 513. The judgment of conviction was affirmed, but the abstract of 9 judgment was amended to reflect a consecutive sentence of one-third the midterm on count 11 10 (two years, with the “1/3 Consecutive” box checked). Id. at 516. 11 Plaintiff is correct that his conviction for human trafficking is categorized as a nonviolent 12 felony. However, such conviction requires plaintiff to register as a sex offender under California 13 Penal Code Section 290. Id. It appears that the CDCR has determined that such registration 14 requirement precludes plaintiff from receiving parole consideration under Proposition 57. 15 Contrary to plaintiff’s belief that his inability to access early release under Proposition 57 16 violates the intent of the public in passing Proposition 57, at least one state court justice disagrees. 17 In re Gadlin, 31 Cal. App. 5th 784, 796 (2019), aff'd, 10 Cal. 5th 915 (2020) (concurrence). In 18 Gadlin, Justice Baker evaluated Proposition 57 in the context of those inmates, like plaintiff, who 19 were convicted of nonviolent felonies but were convicted of sex offenses that require registration 20 as a sex offender under California Penal Code Section 290. Gadlin, 33 Cal. App. 5th at 796. The 21 Justice concluded that 22 Proposition 57’s proponents assured voters that those required to register as sex offenders would not benefit from the initiative, and 23 that assurance leaves me convinced voters did not intend to preclude

24 1 Plaintiff’s sentence was comprised of the following: “the upper term of 12 years on count 1; consecutive terms of two years eight months (one-third the midterm) on counts 2 and 6; 25 concurrent three year terms (the upper term) on counts 3, 4, 5, 8, and 10; 365 days on count 9 (time served); a concurrent sentence of three years (the upper term) on count 10; a consecutive 26 two year sentence (one-third the midterm) on count 11; and concurrent nine year sentences (the 27 upper term) on counts 12 and 13. Defendant was assessed various fines and fees, awarded presentence custody credits, and ordered to register pursuant to section 290.” Hicks, 17 Cal. App. 28 5th at 503. 1 CDCR from promulgating regulations that preclude relief for state prison inmates incarcerated for a current crime that requires 2 registration as a sex offender. 3 Gadlin, 31 Cal. App. 5th at 796. In his amended complaint, plaintiff identifies no facts that 4 support a cognizable civil rights claim in connection with Proposition 57. In addition, plaintiff 5 fails to identify a particular individual responsible for such alleged violation. 6 Remaining Allegations 7 The remaining allegations in plaintiff's amended complaint are too vague and conclusory 8 to determine whether the current action is frivolous or fails to state a claim for relief. The court 9 has determined that the amended complaint does not contain a short and plain statement as 10 required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, 11 a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones 12 v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least 13 some degree of particularity overt acts which defendants engaged in that support plaintiff's claim. 14 Id. Plaintiff must specifically identify what cause of action he is pursuing against each named 15 defendant, and what relief he seeks through this action. 16 Misjoinder 17 Rule 21 of the Federal Rules of Civil Procedure provides: 18 Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add 19 or drop a party. The court may also sever any claim against a party. 20 Fed. R. Civ. P. 21. Rule 20(a) provides that all persons may be joined in one action as defendants 21 if “any right to relief is asserted against them jointly, severally, or in the alternative with respect 22 to or arising out of the same transaction, occurrence, or series of transactions or occurrences” and 23 “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 24 20(a)(2). See also George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims against 25 unrelated defendants belong in different suits”). If unrelated claims are improperly joined, the 26 court may dismiss them without prejudice. Fed. R. Civ. P. 21; 7 Alan Wright, Arthur Miller & 27 Mary Kay Kane, Richard Marcus, Federal Practice and Procedure § 1684 (3d ed. 2012); Michaels 28 Building Co. v. Ameritrust Co., 848 F.2d 674, 682 (6th Cir. 1988) (affirming dismissing under 1 Rule 21 of certain defendants where claims against those defendants did not arise out of the same 2 transaction or occurrences, as required by Rule 20(a)). 3 Leave to Amend 4 Because plaintiff failed to comply with the requirements of Rules 8(a)(2) and 10 of the 5 Federal Rules of Civil Procedure, the amended complaint must be dismissed. The court will, 6 however, grant leave to file a second amended complaint. Plaintiff is required to use the court’s 7 form to file his amended pleading. 8 If plaintiff chooses to file a second amended complaint, plaintiff must demonstrate how 9 the conditions complained of have resulted in a deprivation of plaintiff’s federal constitutional or 10 statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the second amended 11 complaint must allege in specific terms how each named defendant is involved. There can be no 12 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 13 defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. 14 Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 15 1978). Furthermore, vague and conclusory allegations of official participation in civil rights 16 violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 17 A district court must construe a pro se pleading “liberally” to determine if it states a claim 18 and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an 19 opportunity to cure them. See Lopez, 203 F.3d at 1130-31. While detailed factual allegations are 20 not required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 21 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp. v. 22 Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted 23 as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting 24 Bell Atlantic Corp., 550 U.S. at 570). 25 A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 26 defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for 27 more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a 28 defendant’s liability, it stops short of the line between possibility and ] plausibility of entitlement to relief. 2 || Iqbal, 556 U.S. at 678 (citations and quotation marks omitted). Although legal conclusions can 3 || provide the framework of a complaint, they must be supported by factual allegations, and are not 4 | entitled to the assumption of truth. Id. at 1950. 5 An amended complaint must be complete in itself without reference to any prior pleading. 6 || Local Rule 220; See Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) 7 || (‘an ‘amended complaint supersedes the original, the latter being treated thereafter as non- g || existent.’” (internal citation omitted)). Once plaintiff files an amended complaint, the original or 9 || prior pleading is superseded. 10 In accordance with the above, IT IS HEREBY ORDERED that: 11 1. Plaintiff's amended complaint is dismissed. 12 2. Plaintiff is granted thirty days from the date of service of this order to file a second 13 || amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules 14 || of Civil Procedure, this court’s orders, and the Local Rules of Practice; the second amended 15 || complaint must be filed on the court’s complaint form, bear the docket number assigned this case 16 || and be labeled “Second Amended Complaint”; 17 || failure to file a second amended complaint in accordance with this order will result in a 18 || recommendation that this action be dismissed. 19 3. The Clerk of the Court is directed to send plaintiff the form for filing a civil rights 20 || complaint by a prisoner. 21 | Dated: January 24, 2023 22 A Abar Mick0903.14amd UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28