# (PC) Calloway v. Nieves > District Court, E.D. California · April 6, 2020 URL: https://www.frixlaw.com/law-library/cases/10018256 ## Case - **Court:** District Court, E.D. California - **Decided:** April 6, 2020 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10018256 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMISI J. CALLOWAY, No. 2:19-cv-01792 KJM CKD P 12 Plaintiff, 13 v. ORDER 14 D. NIEVES, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner appearing pro se, brings this civil rights action pursuant to 42 18 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 19 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 The court is required to screen complaints brought by prisoners seeking relief against a 2 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 3 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 4 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 5 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1) & 6 (2). Plaintiff’s complaint (ECF No. 1) is before the court for screening. 7 The court finds that this case may proceed against defendants Nieves and Luang for 8 excessive force claims arising under the Eighth Amendment, and against defendants Rowland, 9 Mims, Aungst, and Abu for deliberate indifference claims also arising under the Eighth 10 Amendment. (See ECF No. 1 at 2, listing Defendants 11-14.) With respect to the other 11 defendants identified in plaintiff’s complaint, the facts alleged fail to state actionable claims. 12 Plaintiff has two options: 1) he may proceed on the claims described above; or 2) make an 13 attempt to cure the deficiencies in his amended complaint with respect to the other defendants and 14 claims in an amended complaint. 15 If plaintiff decides to file an amended complaint, plaintiff should consider that in order to 16 state an actionable claim, plaintiff must demonstrate with specific allegations how the conditions 17 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 18 Cassidy, 625 F.2d 227 (9th Cir. 1980). To establish a claim for retaliation under the First 19 Amendment, a prisoner must show that a prison official took some adverse action against an 20 inmate because of that prisoner’s protected conduct, that the action chilled the inmate’s exercise 21 of his constitutional rights, and the action did not advance a legitimate correctional goal. Rhodes 22 v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). 23 Moreover, if a prison official’s allegedly retaliatory actions resulted in a disciplinary 24 conviction, the prisoner’s claim is likely barred by Heck v. Humphrey, 512 U.S. 477 (1994). In 25 Heck, the Supreme Court held that to recover damages for “harm caused by actions whose 26 unlawfulness would render a conviction or sentence invalid,” a § 1983 plaintiff must prove that 27 the conviction or sentence was reversed, expunged, or otherwise invalidated. Id. at 486–487. 28 The Heck bar preserves the rule that federal challenges, which, if successful, would necessarily 1 imply the invalidity of incarceration or its duration, must be brought by way of petition for writ of 2 habeas corpus, after exhausting appropriate avenues of relief. Muhammad v. Close, 540 U.S. 3 749, 750–751 (2004). Accordingly, “a state prisoner’s [section] 1983 action is barred (absent 4 prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target 5 of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)—if 6 success in that action would necessarily demonstrate the invalidity of confinement or its 7 duration.” Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005). If a plaintiff prevails on his 8 retaliation claim based on a defendant’s allegedly false statements, a judgment in his favor will 9 necessarily imply the invalidity of his disciplinary conviction and any resulting credit loss. See 10 Edwards, 520 U.S. at 644, 647. Consequently, plaintiff's §1983 action cannot proceed unless and 11 until his disciplinary conviction is invalidated as required by Heck and Edwards. 12 In any amended complaint, plaintiff must allege in specific terms how each named 13 defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some 14 affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo 15 v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory allegations of official 16 participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 17 268 (9th Cir. 1982). 18 Finally, plaintiff is informed that if he elects to amend, the court cannot refer to a prior 19 pleading in order to make the amended complaint complete. Local Rule 220 requires that an 20 amended complaint be complete in itself without reference to any prior pleading. This is because, 21 as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 22 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original 23 complaint no longer serves any function in the case. Therefore, in an amended complaint, each 24 claim and the involvement of each defendant must be sufficiently alleged. 25 In accordance with the above, IT IS HEREBY ORDERED that plaintiff is granted 21 days 26 within which to complete and return the attached form notifying the court whether he wants to 27 proceed on claims arising under the Eighth Amendment against defendants Nieves, Luang, 28 Rowland, Mims, Aungst, and Abu, or whether he wishes to file an amended complaint in an 1 | attempt to cure the deficiencies in his original complaint. If plaintiff does not return the form, this 2 | action will proceed on the claims described above. □ A. FPR Tus Dated: April 6, 2020 fA id fle (o CAROLYN K. DELANEY 5 UNITED STATES MAGISTRATE JUDGE 6 7 g 2/calloway1792.op 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMISI J. CALLOWAY, No. 2:19-cv-01792 KJM CKD P 12 Plaintiff, 13 v. PLAINTIFF’S NOTICE OF 14 D. NIEVES, et al., HOW TO PROCEED 15 Defendants. 16 17 Check one: 18 _____ Plaintiff wants to proceed immediately on Eighth Amendment claims against defendants 19 Nieves, Luang, Rowland, Mims, Aungst, and Abu. 20 _____ Plaintiff wants time to file an amended complaint. 21 22 DATED: 23 ________________________________ Plaintiff 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10018256. Public record. Not legal advice.