a person subjects another to the 22 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 23 perform an act he is legally required to do that causes the alleged deprivation
How later courts described this case
- a person subjects another to the 22 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 23 perform an act he is legally required to do that causes the alleged deprivation
- “[S]tate departmental regulations do not 4 establish a federal constitutional violation.”
- “In order 14 for a person acting under color of state law to be liable under section 1983 there must be a 15 showing of personal participation in the alleged rights deprivation: there is no respondeat superior 16 liability under section 1983.”
- “The Eleventh Amendment 28 prohibits suits against a state, and section 1983 does not abrogate this immunity.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 DAMON HAMILTON, No. 2:19-cv-1963-WBS-EFB P
12 Plaintiff,
13 v. ORDER
14 CALIFORNIA, et al.
15 Defendants.
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17 Plaintiff, a former state prisoner proceeding without counsel in this action brought
18 pursuant to 42 U.S.C. § 1983, seeks leave to proceed in forma pauperis. ECF No. 2.
19 Application to Proceed In Forma Pauperis
20 Plaintiff’s application (and accompanying trust fund account (ECF No. 5)) make the
21 showing required by 28 U.S.C. § 1915(a)(1). Accordingly, his request to proceed in forma
22 pauperis is granted.
23 Screening
24 I. Legal Standards
25 Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the
26 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on
27 which relief may be granted, or seeks monetary relief against an immune defendant.
28 /////
1 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,
2 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it
3 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
4 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41
5 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff's obligation to provide the ‘grounds’ of
6 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of
7 a cause of action's elements will not do. Factual allegations must be enough to raise a right to
8 relief above the speculative level on the assumption that all of the complaint's allegations are
9 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable
10 legal theories or the lack of pleading sufficient facts to support cognizable legal theories.
11 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
12 In reviewing a complaint under this standard, the court must accept as true the allegations
13 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740
14 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in
15 the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must
16 satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule
17 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the
18 pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the
19 grounds upon which it rests.” Twombly, 550 U.S. at 562-563 (2007).
20 II. Analysis
21 A. Background
22 Plaintiff alleges that he was set for a parole hearing on June 4, 2019. ECF No. 1 at 3. The
23 day before the hearing was to occur, he was assessed with a disciplinary violation for an incident
24 that allegedly occurred eleven months prior. Id. Plaintiff apparently did not receive his parole
25 hearing and now claims that the charge – which was apparently referred to the relevant district
26 attorney but not pursued by the same – was untimely and deprived him of his right to a
27 “meaningful [parole] hearing at a meaningful time.” Id.
28 /////
1 In addition, plaintiff also claims that foregoing disciplinary violation was subsequently
2 separated into two distinct violations – a technique known as “stacking” which California
3 Department of Corrections and Rehabilitation policy prohibits. Id. at 6. It is unclear whether this
4 “stacking” affected his foregoing parole concerns or whether it represents a separate claim
5 entirely.
6 Finally, plaintiff alleges that a lack of evidence supported the assessed disciplinary charge.
7 Id. at 10. He does not state whether he was actually convicted of the charge or, if so, what
8 penalty was doled out. Instead, he alludes to problems with the evidentiary “chain of custody”
9 and vaguely argues that his due process rights have been violated. Id.
10 B. Analysis
11 Plaintiff’s complaint is deficient for several reasons.
12 First and with respect to his claim for delay of parole hearing, it is unclear how long
13 plaintiff’s hearing was postponed and what prejudice he suffered because of the delay. The U.S.
14 Court of Appeals for the Ninth Circuit has held that delay in holding a parole hearing amounts to
15 a due process violation only where the “[parole] commission’s delay in holding a revocation
16 hearing was both unreasonable and prejudicial.” Vargas v. U.S. Parole Comm’n, 865 F.2d 191,
17 194 (9th Cir. 1988) (analyzing due process in the context of a parole revocation hearing); see also
18 Arellano v. United States Bureau of Prisons, 1989 U.S. App. LEXIS 23898, * 3 (9th Cir. 1989)
19 (unpublished). To show prejudice, plaintiff must allege that the delay had some effect on his
20 suitability for parole. See, e.g., Israel v. Hedgpeth, No. C 09-04233 CW (PR), 2012 U.S. Dist.
21 LEXIS 34571 at *15-16 (Cal. C.D. Mar. 14, 2012) (“First, the Board did not abrogate Petitioner’s
22 future right to parole hearings, or even deny them indefinitely but rather postponed his scheduled
23 parole hearing on two occasions. . . . Nothing indicates the delays had any effect on the standards
24 for determining suitability.”).1
25 1 His complaint is not clear, but plaintiff seems to suggest that something pretextual
26 should be inferred by the timing of violation assessment. The charged conduct occurred eleven
months before the date that the disciplinary violation was actually charged. But the day before
27 his parole hearing, someone made a decision to charge the seemingly stale violation. If plaintiff
is attempting to claim that the timing of the charge was intended to improperly influence the
28 outcome of the parole hearing, he must do so explicitly, and he must explain how it would have
1 Second and with regard to his “stacking” claim, plaintiff is advised that no section 1983
2 claim may be premised solely on an alleged violation of prison policy or procedure. See Cousins
3 v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (“[S]tate departmental regulations do not
4 establish a federal constitutional violation.”) (emphasis in original).
5 Third, the court cannot discern the contours of plaintiff’s claim regarding the sufficiency
6 of evidence underlying his rules violation charge. If plaintiff was convicted of a rules violation
7 and believes that his conviction is not supported by sufficient evidence, it behooves him to say so
8 explicitly.
9 Finally and perhaps most fundamentally, plaintiff has named three2 individual defendants
10 – Warden Rick Hill, Lieutenant Fraker, and Sergeant Aguilar – but does not allege what actions
11 each personally undertook that violated his rights. In fact, as far as the court can discern, none
12 receives specific mention in the body of the complaint. Thus, he has failed to state a cognizable
13 claim against any of them. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (“In order
14 for a person acting under color of state law to be liable under section 1983 there must be a
15 showing of personal participation in the alleged rights deprivation: there is no respondeat superior
16 liability under section 1983.”).
17 Plaintiff will be given leave to amend to address the foregoing deficiencies.
18 III. Leave to Amend
19 Plaintiff is cautioned that any amended complaint must identify as a defendant only
20 persons who personally participated in a substantial way in depriving him of his constitutional
21 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the
22 deprivation of a constitutional right if he does an act, participates in another’s act or omits to
23 perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also
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been an improper attempt to influence the result. Further, he must support his allegation with
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specific facts.
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2 Plaintiff has also sued the State of California. He seeks, however, only monetary
27 damages. ECF No. 1 at 20. The state, owing to the Eleventh Amendment, is immune from suit
for damages. See Stivers v. Pierce, 71 F.3d 732, 749 (9th Cir. 1995) (“The Eleventh Amendment
28 prohibits suits against a state, and section 1983 does not abrogate this immunity.”).
1 include any allegations based on state law that are so closely related to his federal allegations that
2 “they form the same case or controversy.” See 28 U.S.C. § 1367(a).
3 The amended complaint must also contain a caption including the names of all defendants.
4 Fed. R. Civ. P. 10(a).
5 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See
6 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
7 Any amended complaint must be written or typed so that it so that it is complete in itself
8 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended
9 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the
10 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114
11 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter
12 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.
13 1967)).
14 Any amended complaint should be as concise as possible in fulfilling the above
15 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual
16 background which has no bearing on his legal claims. He should also take pains to ensure that his
17 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing
18 and organization. Plaintiff should carefully consider whether each of the defendants he names
19 actually had involvement in the constitutional violations he alleges. A “scattershot” approach in
20 which plaintiff names dozens of defendants will not be looked upon favorably by the court.
21 Conclusion
22 Accordingly, it is ORDERED that:
23 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is GRANTED.
24 2. Plaintiff’s complaint (ECF No. 1) is dismissed with leave to amend within 30 days
25 from the date of service of this order; and
26 /////
27 /////
28 /////
1 3. Failure to file an amended complaint that complies with this order may result in the
2 || dismissal of this action for the reasons stated herein.
3 | DATED: April 9, 2020.
4 Dating : heh bie
5 EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE
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