Ian LaMonte Cormier v. James Comey

[7] UNITED STATES DISTRICT COURT [8] CENTRAL DISTRICT OF CALIFORNIA [9] EASTERN DIVISION [11] 12 IAN LaMONTE CORMIER, Case No. 5:19-cv-01198-SVW (AFM) 13 Plaintiff, ORDER DISMISSING COMPLAINT v. 14 WITH LEAVE TO AMEND 15 JAMES COMEY., et al., 16 Defendants. [17] 18 On June 28, 2019, plaintiff filed a Complaint in this pro se civil rights action 19 pursuant to 42 U.S.C. § 1983 . (ECF No. 1.) The Complaint was signed by plaintiff 20 on June 2, 2019. (Id. at 7, 14.) Plaintiff paid the filing fee on September 25, 2019. 21 (ECF No. 18.) The Complaint arises from incidents that occurred while plaintiff was 22 detained on criminal charges in San Diego County and in Riverside County, 23 California. (ECF No. 1 at 1.) Plaintiff namesas defendantsmore than ten individuals 24 who are identified as attorneys, two Superior Court judges, one District Attorney, 25 one deputy sheriff, and several individuals identified as doctors. (Id. at 2, 8, 15-17.) 26 The Complaint lists incident dates of 1985, 1986, 2013, and October 24, 2018. (Id. 27 at 1, 3-5, 8.) Plaintiff seeks monetary damages. (Id. at 7, 14.) [28] 1 In accordance with the terms of the Prison Litigation Reform Act of 1995 2 (“PLRA”), the Court has screened the Complaintprior to ordering service for purpose 3 of determining whether the action is frivolous or malicious; or fails to state a claim 4 on which relief may be granted; or seeks monetary relief against a defendant who is 5 immune from such relief. See 28 U.S.C. § 1915A; 42 U.S.C. § 1997e(c)(1).1 6 The Court’s screening of the pleading under the foregoing statutes is governed 7 by the following standards. A complaint may be dismissed as a matter of law for 8 failure to state a claim for two reasons: (1) “lack of a cognizable legal theory;” or 9 (2) insufficient “facts alleged under a cognizable legal theory.” See, e.g., Kwan v. 10 SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017) (internal quotation marks 11 omitted); see also Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (when 12 determining whether a complaint should be dismissed for failure to state a claim 13 under the PLRA, the court applies the same standard as applied in a motion to dismiss 14 pursuant to Rule 12(b)(6)). In determining whether the pleading states a claim on 15 which relief may be granted, its allegations of material fact must be taken as true and 16 construed in the light most favorable to plaintiff. See, e.g., Soltysik v. Padilla, 910 17 F.3d 438, 444 (9th Cir. 2018). However, the “tenet that a court must accept as true 18 all of the allegations contained in a complaint is inapplicable to legal conclusions.” 19 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a court first “discounts 20 conclusory statements, which are not entitled to the presumption of truth, before 21 determining whether a claim is plausible.” Salameh v. Tarsadia Hotel, 726 F.3d 22 23 1 Plaintiff’s present address is the Patton State Hospital, and it is not clear to the Court what his current status is. However, plaintiff alleges that he was held for trial, that he entered a plea, and 24 that he had been held at Salinas Valley State Prison. (See, e.g., ECF No. 1 at 5, 27-28.) Accordingly, it appears to the Court that plaintiff is a “prisoner” as applicable to the PLRA. See 25 Olivas v. Nevada ex rel. Dep’t of Corr., 856 F.3d 1281, 1284 (9th Cir. 2017) (citing Page and holding that the definition of “prisoner” is the same for 28 U.S.C. 1915A and is determined at the [26] time that plaintiff files the complaint); Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000) 27 (“individuals who, at the time they seek to file their civil actions, are detained as a result of being accused of, convicted of, or sentenced for criminal offenses are ‘prisoners’ within the definition” 28 of 42 U.S.C. § 1997e and 28 U.S.C. § 1915 ). 1 1124, 1129 (9th Cir. 2013); see also Chavez v. United States, 683 F.3d 1102 , 1108 2 (9th Cir. 2012). Nor is the Court “bound to accept as true a legal conclusion couched 3 as a factual allegation or an unadorned, the-defendant-unlawfully-harmed-me 4 accusation.” Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 2018) (internal quotation 5 marks and citations omitted). 6 Further, since plaintiff is appearing pro se, the Court must construe the 7 allegations of the pleadingliberally and must afford plaintiff the benefit of any doubt. 8 See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); see also Alvarez v. Hill, 518 9 F.3d 1152, 1158 (9th Cir. 2008) (because plaintiffwas proceeding pro se, “the district 10 court was required to ‘afford [him] the benefit of any doubt’ in ascertaining what 11 claims he ‘raised in his complaint’”) (alteration in original). Nevertheless, the 12 Supreme Court has held that “a plaintiff’s obligation to provide the ‘grounds’ of his 13 ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 14 recitation of the elements of a cause of action will not do. . . . Factual allegations 15 must be enough to raise a right to relief above the speculative level . . . on the 16 assumption that all the allegations in the complaint are true (even if doubtful in fact).” 17 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted, 18 alteration in original); see also Iqbal, 556 U.S. at 678 (To avoid dismissal for failure 19 to state a claim, “a complaint must contain sufficient factual matter, accepted as true, 20 to ‘state a claim to relief that is plausible on its face.’ . . . A claim has facial 21 plausibility when the plaintiff pleads factual content that allows the court to draw the 22 reasonable inference that the defendant is liable for the misconduct alleged.” (internal 23 citation omitted)). 24 In addition, Fed. R. Civ. P. 8(a) (“Rule 8”) states: 25 A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court’s [26] jurisdiction . . .; (2) a short and plain statement of the claim 27 showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in [28] 1 (Emphasis added). Further, Rule 8(d)(1) provides: “Each allegation must be simple, 2 concise, and direct. No technical form is required.” Although the Court must 3 construe a pro se plaintiff’s pleadings liberally, a plaintiff nonetheless must allege a 4 minimum factual and legal basis for each claim that is sufficient to give each 5 defendant fair notice of what plaintiff’s claims are and the grounds upon which they 6 rest. See, e.g., Brazil v. United States Dep’t of the Navy, 66 F.3d 193 , 199 (9th Cir. 7 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (a complaint must give 8 defendants fair notice of the claims against them). If a plaintiff fails to clearly and 9 concisely set forth factual allegations sufficient to provide defendants with notice of 10 which defendant is being sued on which theory and what relief is being sought against 11 them, the pleading fails to comply with Rule 8. See, e.g.,McHenry v. Renne, 84 F.3d 12 1172, 1177-79 (9th Cir. 1996); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671 , 13 674 (9th Cir. 1981). A claim has “substantive plausibility” if a plaintiff alleges 14 “simply, concisely, and directly [the] events” that entitle him to damages. Johnson 15 v. City of Shelby, 574 U.S. 10 , 12 (2014). Failure to comply with Rule 8 constitutes 16 an independent basis for dismissal of a pleading that applies even if the claims are 17 not found to be “wholly without merit.” See McHenry, 84 F.3d at 1179 . 18 Following careful review of the Complaint, the Court finds that many of the 19 claims appear to be barred by the statute of limitations, and the factual allegations 20 appear insufficient to state a claim upon which relief may be granted. Further, the 21 pleading fails to comply with Rule 8 because it fails to state a short and plain 22 statement of each claim that is sufficient to give each defendant fair notice of what 23 plaintiff’s claims are and the grounds upon which they rest. Accordingly, the 24 Complaint is dismissed with leave to amend. See Rosati, 791 F.3d at 1039 (“A 25 district court should not dismiss a pro se complaint without leave to amend unless it 26 is absolutely clear that the deficiencies of the complaint could not be cured by 27 amendment.”) (internal quotation marks omitted). [28] 1 If plaintiff desires to pursue this action, he is ORDERED to file a First 2 Amended Complaint no later than thirty (30) days after the date of this Order, 3 remedying the deficiencies discussed below. Further, plaintiff is admonished that, 4 if he fails to timely file a FirstAmended Complaintor fails to remedy the deficiencies 5 of this pleading as discussed herein, the Court will recommend that this action be 6 dismissed without further leave to amend and with prejudice.2 7 A. Statute of Limitations 8 The Complaint references incident dates in 1985, 1986, and 2013 (ECF No. 1 9 at 1, 3-4, 8.) It appears to the Court that plaintiff’s “Count 1” arises from events that 10 took place in 1985or 1986(id. at 3, 10, 21), and that plaintiff’s “Count 2” arises from 11 events that took place in 2013 (id. at 4, 11). Plaintiff signed his Complaint on June 2, 12 2019. (Id. at 7, 14.) 13 Federal civil rights claims brought pursuant to § 1983 are subject to the forum 14 state’s statute of limitations applicable to personal injury claims. See, e.g., Bird v. 15 Dep’t of Human Servs., 935 F.3d 738, 743 (9th Cir. 2019) (citing Wilson v. Garcia, [16] 471 U.S. 261, 276 (1985)). Federal civil rights claims arising in California after 2003 17 are subject to the two-year limitations period set forth in Cal. Civ. Proc. Code § 335.1 . 18 See, e.g., Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004). Federal law, 19 however, determines when a civil rights claim accrues. See McDonough v. Smith, [20] 139 S. Ct. 2149, 2155 (2019) (“the time at which a § 1983 claim accrues is a question 21 of federal law” (internal quotation marks omitted)). A cause of action typically [22] 23 2 Plaintiff is advised that this Court’s determination herein that the allegations in the Complaint are insufficient to state a particular claim should not be seen as dispositive of that claim. 24 Accordingly, although this Court believes that you have failed to plead sufficient factual matter in your pleading, accepted as true, to state a claim to relief that is plausible on its face, you are not 25 required to omit any claim or defendant in order to pursue this action. However, if you decide to pursue a claim in a First Amended Complaint that this Court has found to be insufficient, then this [26] Court, pursuant to the provisions of 28 U.S.C. §636 , ultimately may submit to the assigned district 27 judge a recommendation that such claim be dismissed with prejudice for failure to state a claim, subject to your right at that time to file Objections with the district judge as provided in the Local 28 Rules Governing Duties of Magistrate Judges. 1 accrues under federal law as soon as a potential “plaintiff knows or has reason to 2 know of the injury which is the basis of the action.” See Bird, 935 F.3d at 743 . 3 In addition, a federal court must give effect to a state’s tolling provisions. See 4 Hardin v. Straub, 490 U.S. 536, 539 (1989). Under California law, the continuous 5 incarceration of a plaintiff is a disability that tolls the statute of limitations for a 6 maximum of two years. See Cal. Civ. Proc. Code § 352.1 ; see, e.g., Jones v. Blanas, [7] 393 F.3d 918, 927 (9th Cir. 2004) (California provides for statutory tolling for a 8 period of up to two years based on the disability of imprisonment); Elliott v. City of 9 Union City, 25 F.3d 800, 802 (9th Cir. 1994). Such tolling is applicable only if a 10 plaintiff was imprisoned “at the time the claim accrued.” Elliott, 25 F.3d at 802 -03 11 (explaining that “actual, uninterrupted incarceration is the touchstone” for assessing 12 tolling for the disability of “post-arrest custody”) (citation omitted)). 13 Plaintiff’s federal claims herein accrued no later than the day on which he 14 learned of the events that gave rise to a specific civil rights claim. Giving plaintiff 15 the benefit of any doubt as a pro se litigant, even assuming for purposes of 16 determining the adequacy of plaintiff’s pleading that plaintiff has been continually 17 incarcerated, his uninterrupted incarceration would entitle plaintiff to a maximum of 18 two years of statutory tolling. SeeCal. Code Civ. Proc. § 352.1(a) (expressly limiting 19 tolling arising from incarceration to a period not to exceed two years). Absent other 20 grounds for tolling, therefore, plaintiff’s federal civil rights claims in this action are 21 time-barred to the extent that they accrued prior to June 2015. 22 Accordingly, it appears to the Court that plaintiff’s “Count 1” and “Count 2” 23 are barred by the statute of limitations. A pleading may be dismissed on statute of 24 limitations grounds if “the statute of limitations issues are apparent on the face of the 25 complaint.” Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013). 26 B. Absolute Immunity 27 Plaintiff names as defendants two Superior Court judges and an attorney with 28 the San Diego County District Attorney’s Office. (ECF No. 1 at 2, 8, 17.) To the 1 extent that plaintiff’s claims against these defendants are not barred by the statute of 2 limitations, it appears to the Court that the claims are barred by absolute immunity. 3 A judicial defendant is absolutely immune from federal civil rights suits for 4 acts performed in his or her judicial capacity. Mireles v. Waco, 502 U.S. 9, 11 (1991); 5 Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc). Further, judicial 6 immunity applies “however erroneous the act may have been, and however injurious 7 in its consequences it may have proved to the plaintiff.” Moore v. Brewster, 96 F.3d 8 1240, 1244 (9th Cir. 1996). Judicial immunity is not lost if a plaintiff alleges that an 9 action was erroneous, was malicious, or was in bad faith. Mireles, 502 U.S. at 11 - 10 12; Stump v. Sparkman, 435 U.S. 349, 356 (1978) (“[a] judge will not be deprived of 11 immunity because the action he took was in error, was done maliciously, or was in 12 excess of his authority”). Rather, judicial immunity is lost only if an action is taken 13 in the “clear absence” of jurisdiction, such as when judicial officers “rule on matters 14 belonging to categories which the law has expressly placed beyond their purview.” 15 O’Neil v. City of Lake Oswego, 642 F.2d 367 , 369-70 (9th Cir. 1981) (discussing the 16 distinction between actions taken “in clear absence of all jurisdiction” and those taken 17 merely “in excess of jurisdiction”). 18 Here, it appears to the Court that any claims against Judge Jones would be 19 barred by the statute of limitations. (See ECF No. 1 at 3, 10, 18, 20.) To the extent 20 that plaintiff is raising any federal claims against Judge Gunn that are not barred by 21 the statute of limitations (see, e.g., id. at 12, 24-25), it appears that plaintiff’s factual 22 allegations arise solely from actions that Judge Gunn took in his judicial capacity. 23 Accordingly, it appears that Judge Gunn is entitled to absolute immunity from suit 24 for any timely claims in plaintiff’s Complaint. 25 Similarly, to the extent that plaintiff is purporting to raise any claims against 26 District Attorney Hostin (see id. at 2, 8), it appears that this defendant is entitled to 27 absolute immunity for any claims for damages arising from plaintiff’s criminal 28 prosecution. Prosecutors are entitled to absolute immunity from damages liability 1 when they engage in activities “intimately associated with the judicial phase of the 2 criminal process,” such as the prosecution and presentation of the state’s case. See 3 Imbler v. Pachtman, 424 U.S. 409, 427, 430-31 (1976). This immunity applies even 4 if it “does leave the genuinely wronged defendant without civil redress against a 5 prosecutor whose malicious or dishonest action deprives him of liberty.” Imbler, 424 6 U.S. at 427. However, it is the nature of the function performed, not the role or title 7 of the actor that determines the scope of absolute immunity. See Engebretson v. 8 Mahoney, 724 F.3d 1034, 1039 (9th Cir. 2013) (“the Supreme Court has emphasized 9 this functional approach for determining when public officials may claim absolute 10 immunity under § 1983”). Here, it is not clear from the Complaint if plaintiff is 11 alleging any claims against defendant Hostin that are not barred by the statute of 12 limitations, but District Attorney Hostin is entitled to absolute immunity for any acts 13 in initiating or presenting a criminal prosecution against plaintiff. See, e.g., Stapley 14 v. Pestalozzi, 733 F.3d 804, 809 (9th Cir. 2013) (“prosecutors have absolute 15 immunity under § 1983 for a decision to initiate a criminal prosecution”). 16 C. Rule 8 17 Plaintiff’s Complaint violates Rule 8 in that, to the extent plaintiff is raising 18 any claims that are not time barred against any defendant who is not entitled to 19 absolute immunity, plaintiff’s Complaint fails to allege a minimum factual and legal 20 basis for each claim that is sufficient to give each defendant fair notice of what 21 plaintiff’s claims are and which factual allegations give rise to each claim. 22 For example, plaintiff’s “Count 3” references a right to a speedy trial, due 23 process, false imprisonment, intentional infliction of emotional distress, and a 24 “conflict of interest.” (ECF No. 1 at 5, 12.) Plaintiff does not clearly identify which 25 of the more than twenty named defendants are alleged to have caused each of these 26 violations. To state a federal civil rights claim against a particular defendant, plaintiff 27 must allege that the defendant deprived him of a right guaranteed under the United 28 States Constitution or a federal statute, and that the “deprivation was committed by 1 a person acting under color of state law.” See West v. Atkins, 487 U.S. 42, 48 (1988). 2 “A person deprives another ‘of a constitutional right, within the meaning of section 3 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits 4 to perform an act which he is legally required to do that causes the deprivation of 5 which [the plaintiff complains].’” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) 6 (emphasis and alteration in original). Further, the “under-color-of-state-law” 7 requirement excludes from the reach of § 1983 all “merely private conduct, no matter 8 how discriminatory or wrongful.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 9 40, 50 (1999). Thus, the “ultimate issue in determining whether a person is subject 10 to suit under § 1983” is whether “the alleged infringement of federal rights is fairly 11 attributable” to the government. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). 12 Plaintiff’s inclusion of claims arising under state law, such as intentional infliction 13 of emotional distress within his “Count 3,” renders it difficult for each defendant to 14 determine which federal claims are being raised against him or her. 15 Further, in his “Count 3,” plaintiff includes, inter alia, factual allegations 16 pertaining to an “attack” in October 2018, questioning at the Moreno Valley Police 17 Department, being held for trial, an arrest in Los Angeles County, a fight that 18 occurred at Salinas Valley State Prison, and placement in administrative segregation. 19 (See ECF No. 1 at 5, 12, 26-28.) But the defendants are identified as being located 20 in Riverside County and San Diego County. (Id.at 2, 8, 15-17.) Salinas Valley State 21 Prison is in Monterey County, where none of plaintiff’s defendants appears to be 22 located. Further, it seems clear that the defendants located in San Diego County did 23 not cause any of the claims that arose in Riverside County. To the extent that plaintiff 24 wishes to state a federal civil rights claim against any named defendant, plaintiff 25 should set forth a separate, short, and plain statement of the actions that each 26 defendant is alleged to have taken, or failed to have taken, that caused each violation 27 of a right guaranteed under the federal Constitution or a federal statute. See West, [28] 487 U.S. at 48 . 1 Additionally, plaintiff names numerous attorneys as defendants in his 2 Complaint. A private individual, such as an attorney, may be considered to be acting 3 under color of state law only if a private party intentionally engages in joint action 4 with a state official to deprive someone of a constitutional right. See United 5 Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540 (9th Cir. 1989) 6 (en banc) (“Private parties act under color of state law if they willfully participate in 7 joint action with state officials to deprive others of constitutional rights.”). An 8 attorney, even if appointed by a court or government entity, is a private party who 9 does notact under color of state law. See Polk County v. Dodson, 454 U.S. 312 , 31810 19, n.9, 325 (1981) (“a lawyer representing a client is not, by virtue of being an officer 11 of the court, a state actor ‘under color of state law’ within the meaning of §1983,” 12 regardless of “whether the lawyer is privately retained, appointed, or serving in a 13 legal aid or defender program”); Miranda v. Clark County, 319 F.3d 465, 468-69 (9th 14 Cir. 2003) (en banc) (a public defender performing the role of an attorney for a client 15 is not a state actor under §1983); DeGrassi v. City of Glendora, 207 F.3d 636 , 647 16 (9th Cir. 2000) (a “bare allegation” that a private person acted jointly with state 17 officials is insufficient to state a claim under §1983). Here, it appears to the Court 18 that plaintiff’s claims against the attorneys who are named as defendants in plaintiff’s 19 Complaint do not arise from actions taken by any attorney outside of that attorney’s 20 role as an attorneyfor plaintiff. Accordingly, the namedattorneys are not state actors, 21 and plaintiff may not raise a claim pursuant to § 1983 against such defendants. 22 Because plaintiff appears to raise numerous claims under multiple legal 23 grounds within each“Count,” and because all defendants named in this actionare not 24 alleged to have participated in all parts of the alleged events, the Complaint fails to 25 meet the minimal requirement of Rule 8 that a pleading allow each defendant to 26 discern what he or she is being sued for. See McHenry, 84 F.3d at 1177 ; see also 27 Twombly, 550 U.S. at 555 (“[f]actual allegations must be enough to raise a right to 28 relief above the speculative level”). The Court is mindful that, because plaintiff is 1 appearing pro se, the Court must construe the allegations of the Complaint liberally 2 and must afford plaintiff the benefit of any doubt. That said, the Supreme Court has 3 made clear that the Court has “no obligation to act as counsel or paralegal to pro se 4 litigants.” Pliler v. Ford, 542 U.S. 225, 231 (2004). In addition, the Supreme Court 5 has held that, while a plaintiff need not plead the legal basis for a claim, the plaintiff 6 must allege “simply, concisely, and directly events” that are sufficient to inform the 7 defendants of the factual grounds for each claim. Johnson, 135 S. Ct. at 347. 8 Accordingly, the Court finds that plaintiff’s Complaint violates Rule 8 because 9 it fails to set forth a simple, concise, and direct statement of the factual basis of each 10 of plaintiff’s claims against each defendant. If plaintiff wishes to state any federal 11 civil rights claim that is not barred by the statute of limitations or by absolute 12 immunity against any defendant, plaintiff should set forth separate claims stating his 13 factual allegations foreach such claim against each defendant under the standards set 14 forth above. 15 D. Heck 16 In his Complaint, plaintiff names numerous attorneys who appear to have 17 defended plaintiff in connection with criminal charges against plaintiff. Plaintiff 18 alleges that, in at least one case, he entered a plea. (ECF No. 1 at 27.) Plaintiff, 19 however, may not challenge an allegedly unlawful conviction in a federal civil rights 20 action. To the extent that plaintiff may be seeking to have a criminal conviction set 21 aside, a petition for habeas corpus is a prisoner’s sole judicial remedy when 22 “attacking the validity of the fact or length of … confinement.” Preiser v. Rodriguez, [23] 411 U.S. 475, 489-90 (1973); Nettles v. Grounds, 830 F.3d 922, 929 (9th Cir. 2016) 24 (en banc) (the Supreme Court has held“that habeas is the exclusive vehicle for claims 25 brought by state prisoners that fall within the core of habeas and that such claims may 26 not be brought under § 1983”). 27 Further, to the extent that plaintiff may be attempting to use this civil rights 28 action to seek monetary damages for an “allegedly unconstitutional conviction or 1 imprisonment, or for other harm caused by actions whose unlawfulness would render 2 a conviction or sentence invalid” where success would necessarily imply the 3 invalidity of the fact or duration of his confinement, his claims are not cognizable 4 under § 1983 unless and until plaintiff can show that “the conviction or sentence has 5 been reversed on direct appeal, expunged by executive order, declared invalid by a 6 state tribunal authorized to make such determination, or called into question by a 7 federal court’s issuance of a writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 8 477, 486-87 (1994);Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (prisoner’s civil 9 rights action is barred “if success in that action would necessarily demonstrate the 10 invalidity of confinement or its duration” (emphasis in original)). 11 It appears that success on some of the claims that plaintiff may be raising in 12 this civil rights action would necessarily impact the fact or duration of plaintiff’s 13 incarceration. Accordingly, if the success of any of plaintiff’s claims herein would 14 necessarily implicate the fact or length of plaintiff’s incarceration, such claims are 15 barred in this civil rights action unless plaintiff demonstrates that his conviction(s) 16 already has been invalidated. 17 ************ 18 If plaintiff still desires to pursue this action, he is ORDERED to file a First 19 Amended Complaint no later than thirty (30) days after the date of this Order, 20 remedying the pleading deficiencies discussed above. The FirstAmended Complaint 21 should bear the docket number assigned in this case; be labeled “First Amended 22 Complaint”; and be complete in and of itself without reference to the original 23 Complaint, or any other pleading, attachment, or document. 24 Plaintiff is admonished that, irrespective of his pro se status, if plaintiff wishes 25 to proceed with this action, then he must comply with the Federal Rules of Civil 26 Procedure and the Local Rules of the United States District Court for the Central 27 District of California. See, e.g., Briones v. Riviera Hotel & Casino, 116 F.3d 379 , 28 382 (9th Cir. 1997) (“pro se litigants are not excused from following court rules”); 1 || including the Local Rules regarding the format of a pleading, such as L.R. 11-3.2, 2 || which requires that the lines on each page be numbered and that no more than 28 3 | lines of double-spaced text be on each page. Similarly, plaintiff must comply with 4 || Fed. R. Civ. P. 10, which requires that the caption of a pleading include all defendants 5 |) listed in the body of the pleading. 6 The clerk is directed to send plaintiff a blank Central District civil rights 7 || complaint form, which plaintiff is encouraged to utilize. Plaintiff is admonished that 8 || he must sign and date the civil rights complaint form, and he must use the space 9 || provided in the form to set forth all of the claims that he wishes to assert in a First 10 || Amended Complaint. Accordingly, to the extent that plaintiff intended to raise any 11 || new claims in other filings in this action (see ECF Nos. 12, 14, 17), in his First 12 || Amended Complaint plaintiff should set forth a simple, concise, and direct statement 13 || of the factual basis of each such claim against a defendant named in this action. 14 || Further, if plaintiff believes that any document is integral to any of his alleged claims, 15 || then he should attach such document as an exhibit to the First Amended Complaint. 16 In addition, if plaintiff no longer wishes to pursue this action, then he may 17 || request a voluntary dismissal of the action pursuant to Federal Rule of Civil 18 || Procedure 41(a). The clerk also is directed to attach a Notice of Dismissal form for 19 || plaintiff's convenience. 20 Plaintiff is further admonished that, if he fails to timely file a First Amended 21 || Complaint, or he fails to remedy the deficiencies of this pleading as discussed herein, 22 || then the Court will recommend that the action be dismissed with prejudice on the 23 || grounds set forth above and for failure to diligently prosecute. 24 IT IS SO ORDERED. 25 | DATED: 11/19/2019 (Wy Woe 7 ALEXANDER F. MacKINNON 27 UNITED STATES MAGISTRATE JUDGE za | Atte: For