“[A] prisoner in state custody cannot 21 use a § 1983 action to challenge the fact or duration of his confinement. He must seek federal 22 habeas corpus relief (or appropriate state relief) instead.”
How later courts described this case
- “[A] prisoner in state custody cannot 21 use a § 1983 action to challenge the fact or duration of his confinement. He must seek federal 22 habeas corpus relief (or appropriate state relief) instead.”
- dismissal for failure to comply with an order requiring 4 amendment of complaint
- there is no federal 8 constitutional right to parole
- because an administrative appeal process is only a procedural 19 right, no substantive right is conferred, no due process protections arise, and the “failure to 20 process any of Buckley’s grievances, without more, is not actionable under section 1983.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 JOSE A. ROJAS BARRIGA, Case No. 1:21-cv-01459-BAM (PC)
12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN DISTRICT JUDGE TO
13 v. ACTION
14 CATES, et al., FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION, WITH PREJUDICE, FOR
15 Defendants. FAILURE TO STATE A CLAIM, FAILURE
TO OBEY COURT ORDER, AND FAILURE
16 TO PROSECUTE
17 (ECF No. 5)
18 FOURTEEN (14) DAY DEADLINE
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20 I. Background
21 Plaintiff Jose A. Rojas Barriga (“Plaintiff”) is a state prisoner proceeding pro se in this
22 civil rights action under 42 U.S.C. § 1983. This matter was referred to a United States Magistrate
23 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
24 On January 4, 2022, the Court issued a screening order granting Plaintiff leave to file a
25 first amended complaint or a notice of voluntary dismissal within thirty (30) days. (ECF No. 5.)
26 The Court expressly warned Plaintiff that the failure to comply with the Court’s order would
27 result in a recommendation for dismissal of this action, with prejudice, for failure to obey a court
28 order and for failure to state a claim. (Id. at 8.) The deadline has expired, and Plaintiff has failed
1 to file an amended complaint or otherwise communicate with the Court.
2 II. Failure to State a Claim
3 A. Screening Requirement
4 The Court is required to screen complaints brought by prisoners seeking relief against a
5 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.
6 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous
7 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary
8 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).
9 A complaint must contain “a short and plain statement of the claim showing that the
10 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
11 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
12 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
13 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as
14 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,
15 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
16 To survive screening, Plaintiff’s claims must be facially plausible, which requires
17 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable
18 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret
19 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully
20 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility
21 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
22 B. Plaintiff’s Allegations
23 Plaintiff is currently housed at the California Correctional Institution (“CCI”), in
24 Tehachapi, California, where the events in the complaint are alleged to have occurred. Plaintiff
25 names the following defendants: (1) B. Cates, Warden, (2) Baker, CCRA Case Records, and
26 (3) S. Vansickle, Counselor I.
27 Plaintiff alleges as follows.
I was sentenced to a 750 yrs to life for the charges range of 3-6-8 multiple charges
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1 with same and similar offenses. In my grievance claim, I’d discover that I was
charged a serious violent crime and a prior prison that never occurred under 3rd
2
striker. When I requested my privacy act information, grievance office response
that the court nor the District Attorney’s office never submitted report to the
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CDCR electronic file. One thing also when I requested my calculation report the
4 case record cannot provide copies here in CCI, Tehachapi and there’s no accuracy
at all. I’m low risk – CSRA low and 33.3% under Federal ordered February 10,
5 2014.
6 (ECF No. 1, p. 3 (unedited text).)
7 Plaintiff alleges that in his grievance appeal, the response from Sacramento main office is
8 that based on Plaintiff’s case records, Plaintiff is eligible for release due to expiration of time and
9 the decision time expired. Plaintiff alleges the parties, the court, CDCR Warden have the
10 responsibility in punishment of a defendant to have the legal documents in his central file in
11 violation of Plaintiff’s constitutional rights to have access to his Privacy Act information.
12 C. Discussion
13 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to
14 state a cognizable claim under 42 U.S.C. § 1983.
15 1. Federal Rule of Civil Procedure 8
16 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain
17 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).
18 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause
19 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678
20 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a
21 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
22 at 570). While factual allegations are accepted as true, legal conclusions are not. Id.; see also
23 Twombly, 550 U.S. at 556–57.
24 Although Plaintiff's complaint is short, it is not a plain statement of his claims. As a basic
25 matter, the complaint does not clearly state what happened, when it happened or who was
26 involved. Plaintiff’s allegations must be based on facts as to what happened and not conclusions.
27 The allegations are hard to follow, and it is unclear what each defendant did which Plaintiff
28 claims violated his rights. In fact, it is difficult to understand what Plaintiff claims is the
1 purported Constitutional violation.
2 2. Linkage Requirement
3 The Civil Rights Act under which this action was filed provides:
4 Every person who, under color of [state law] . . . subjects, or causes to be
subjected, any citizen of the United States . . . to the deprivation of any rights,
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privileges, or immunities secured by the Constitution . . . shall be liable to the
6 party injured in an action at law, suit in equity, or other proper proceeding for
redress.
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8 42 U.S.C. § 1983.
9 The statute plainly requires that there be an actual connection or link between the actions
10 of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v.
11 Dep’t of Soc. Servs., 436 U.S. 658, (1978); Rizzo v. Goode, 423 U.S. 362, (1976). The Ninth
12 Circuit has held that “[a] person ‘subjects another to the deprivation of a constitutional right,
13 within the meaning of section 1983, if he does an affirmative act, participates in another’s
14 affirmative acts or omits to perform an act which he is legally required to do that causes the
15 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
16 Plaintiff’s complaint fails to link all Defendants to potential constitutional violations.
17 Plaintiff must name individual defendants and allege what each defendant did or did not do that
18 resulted in a violation of his constitutional rights. Plaintiff has not alleged what each individual
19 defendant did or did not do that caused the asserted deprivation.
20 3. Supervisory Personnel
21 Insofar as Plaintiff is attempting to sue Defendant Cates, or any other defendant, based
22 solely upon his or her supervisory role, he may not do so. Liability may not be imposed on
23 supervisory personnel for the actions or omissions of their subordinates under the theory of
24 respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011,
25 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v.
26 Williams, 297 F.3d 930, 934 (9th Cir. 2002).
27 Supervisors may be held liable only if they “participated in or directed the violations, or
28 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045
1 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v.
2 Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Supervisory liability may also exist without any
3 personal participation if the official implemented “a policy so deficient that the policy itself is a
4 repudiation of the constitutional rights and is the moving force of the constitutional violation.”
5 Redman v. Cty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations
6 marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970).
7 To prove liability for an action or policy, the plaintiff “must . . . demonstrate that his
8 deprivation resulted from an official policy or custom established by a . . . policymaker possessed
9 with final authority to establish that policy.” Waggy v. Spokane Cty. Wash., 594 F.3d 707, 713
10 (9th Cir. 2010). When a defendant holds a supervisory position, the causal link between such
11 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.
12 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.
13 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in
14 civil rights violations are not sufficient. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.
15 1982).
16 Plaintiff has failed to allege direct participation in the alleged violations by Defendant
17 Cates. Plaintiff has failed to allege the causal link between defendant and the claimed
18 constitutional violation which must be specifically alleged. He does not make a sufficient
19 showing of any personal participation, direction, or knowledge on the defendant’s part regarding
20 any other prison officials’ actions. Plaintiff has not alleged that the Defendant personally
21 participated in the alleged deprivations.
22 Plaintiff fails to allege what the specific policy is and the causal link between such
23 defendant and the claimed constitutional violation. Plaintiff also has failed to plead facts showing
24 that any policy was a moving force behind the alleged constitutional violations. See Willard v.
25 Cal. Dep’t of Corr. & Rehab., No. 14-0760, 2014 WL 6901849, at *4 (E.D. Cal. Dec. 5, 2014)
26 (“To premise a supervisor’s alleged liability on a policy promulgated by the supervisor, plaintiff
27 must identify a specific policy and establish a ‘direct causal link’ between that policy and the
28 alleged constitutional deprivation.”). Plaintiff has failed to allege facts demonstrating that the
1 policy itself is a repudiation of Plaintiff's Eighth Amendment rights.
2 4. No Constitutional Protection for Early Parole
3 To the extent Plaintiff is seeking early parole, Plaintiff cannot maintain a constitutional
4 violation based on denial of early parole consideration, because Plaintiff has no protected liberty
5 interest in parole. There is no right under the U.S. Constitution to be conditionally released
6 before the expiration of a valid sentence. Swarthout v. Cooke, 562 U.S. 216, 220 (2011); see also
7 Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (there is no federal
8 constitutional right to parole). It follows that there is no constitutional right to parole
9 consideration. Deprivation of any rights to resentencing or early parole therefore cannot be
10 vindicated here. See 42 U.S.C. § 1983 (only deprivation of rights secured by federal law is
11 actionable under Section 1983); see also Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996)
12 (state law issue cannot be transformed into federal law issue by merely invoking due process).
13 5. Habeas Action
14 The Court notes that is unclear what relief Plaintiff seeks in the instant proceeding and
15 whether Plaintiff intends to state a habeas claim.
16 To the extent that Plaintiff is attempting to challenge the validity of his conviction and his
17 incarceration, the exclusive method for asserting that challenge is by filing a petition for writ of
18 habeas corpus. It has long been established that state prisoners cannot challenge the fact or
19 duration of their confinement in a section 1983 action, and that their sole remedy lies in habeas
20 corpus relief. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (“[A] prisoner in state custody cannot
21 use a § 1983 action to challenge the fact or duration of his confinement. He must seek federal
22 habeas corpus relief (or appropriate state relief) instead.”).
23 6. Privacy Act
24 It is not clear if Plaintiff is attempting to bring a claim under the Privacy Act, 5 U.S.C.
25 § 552a. To the extent that he is, he fails to state a claim. The Privacy Act only applies to the
26 federal government, not state or local government agencies. United States v. Streich, 560 F.3d
27 926, 935 (9th Cir. 2009). “The Privacy Act prohibits federal agencies from disclosing certain
28 personal records without an individual's consent, and also provides a means for an individual to
1 access his or her records maintained by a federal agency. 5 U.S.C. § 552a(d)(1).” Jones v.
2 Jimenez, 2017 WL 85783, at *8 (E.D. Cal. Jan. 10, 2017), report and recommendation adopted
3 sub nom. Jones v. Lundy, 2017 WL 915591 (E.D. Cal. Mar. 7, 2017). The Ninth Circuit “has
4 held that the private right of civil action created by the Privacy Act, see 5 U.S.C. § 552a(g)(1)
5 (providing that a private individual ‘may bring a civil action against the agency’), ‘is specifically
6 limited to actions against agencies of the United States Government. The civil remedy provisions
7 of the statute do not apply against private individuals, state agencies, private entities, or state and
8 local officials.’ ” Dittman v. California, 191 F.3d 1020, 1026 (9th Cir. 1999) (emphasis omitted)
9 (quoting Unt v. Aerospace Corp., 765 F.2d 1440, 1447 (9th Cir. 1985)). As Plaintiff is only suing
10 state and local officials, Plaintiff has not stated a cognizable claim as Plaintiff has no right of
11 action against the defendants under the Privacy Act of 1974.
12 7. Grievance Process
13 To the extent that Plaintiff seeks to state a claim based on any of the Defendants’ handling
14 or responding to his inmate appeals, Plaintiff cannot state a claim. Actions in reviewing a
15 prisoner's administrative appeal generally cannot serve as the basis for liability in a section 1983
16 action. Similarly, Plaintiff may not impose liability on a defendant simply because he or she
17 played a role in processing or responding to Plaintiff's inmate appeals. See Buckley v. Barlow,
18 997 F.2d 494, 495 (8th Cir. 1993) (because an administrative appeal process is only a procedural
19 right, no substantive right is conferred, no due process protections arise, and the “failure to
20 process any of Buckley’s grievances, without more, is not actionable under section 1983.”).
21 III. Failure to Prosecute and Failure to Obey a Court Order
22 A. Legal Standard
23 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with
24 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .
25 within the inherent power of the Court.” District courts have the inherent power to control their
26 dockets and “[i]n the exercise of that power they may impose sanctions including, where
27 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A
28 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,
1 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46
2 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,
3 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring
4 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987)
5 (dismissal for failure to comply with court order).
6 In determining whether to dismiss an action, the Court must consider several factors:
7 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its
8 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of
9 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779
10 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).
11 B. Discussion
12 Here, Plaintiff’s first amended complaint is overdue, and he has failed to comply with the
13 Court’s orders. The Court cannot effectively manage its docket if Plaintiff ceases litigating his
14 case. Thus, the Court finds that both the first and second factors weigh in favor of dismissal.
15 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a
16 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.
17 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against
18 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d
19 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose
20 responsibility it is to move a case toward disposition on the merits but whose conduct impedes
21 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products
22 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).
23 Finally, the Court’s warning to a party that failure to obey the court’s order will result in
24 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;
25 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s January 4, 2022 screening
26 order expressly warned Plaintiff that his failure to file an amended complaint would result in a
27 recommendation of dismissal of this action, with prejudice, for failure to obey a court order and
28 for failure to state a claim. (ECF No. 5, p. 8.) Thus, Plaintiff had adequate warning that dismissal
1 could result from his noncompliance.
2 Additionally, at this stage in the proceedings there is little available to the Court that
3 would constitute a satisfactory lesser sanction while protecting the Court from further
4 unnecessary expenditure of its scarce resources. Although Plaintiff paid the filing fee and is not
5 proceeding in forma pauperis in this action, in light of his incarceration it is not clear whether
6 monetary sanctions will be of any use, and the preclusion of evidence or witnesses is likely to
7 have no effect given that Plaintiff has ceased litigating his case.
8 IV. Conclusion and Recommendation
9 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a
10 district judge to this action.
11 Further, the Court finds that dismissal is the appropriate sanction and HEREBY
12 RECOMMENDS that this action be dismissed, with prejudice, for failure to state a claim
13 pursuant to 28 U.S.C. § 1915A, for failure to obey a Court order, and for Plaintiff’s failure to
14 prosecute this action.
15 These Findings and Recommendation will be submitted to the United States District Judge
16 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen
17 (14) days after being served with these Findings and Recommendation, Plaintiff may file written
18 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
19 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the
20 specified time may result in the waiver of the “right to challenge the magistrate’s factual
21 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.
22 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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25 Dated: February 22, 2022 /s/ Barbara A. McAuliffe _
UNITED STATES MAGISTRATE JUDGE
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