Howard v. S.D. Cal

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 EARLE S. HOWARD, Case No.: 3:23-cv-01271-BAS-BLM CDCR #BR6922, [12] ORDER: Plaintiff, [13] vs. (1) DISMISSING COMPLAINT [14] PURSUANT TO 28 U.S.C. § 1915 (e)(2) S.D. CAL., 15 and 28 U.S.C. § 1915A [ECF No. 1]; Defendant. [16] AND [17] (2) DENYING MOTION TO [18] PROCEED IN FORMA PAUPERIS 19 AS MOOT [ECF No. 5] [21] 22 Earle S. Howard (“Plaintiff” or “Howard”), a state prisoner incarcerated at the 23 California Health Care Facility in Stockton, California and proceeding pro se, filed a civil 24 rights complaint pursuant to 42 U.S.C. § 1983 on June 29, 2023. (ECF No. 1.) Plaintiff did 25 not pay the civil filing fee or file a Motion to Proceed in Forma Paupers (“IFP”), and so 26 the Court directed him to either pay the fee or submit a properly supported IFP motion no [28] 1 later than October 20, 2023. (ECF No. 4.) On October 11, 2023, Plaintiff filed an IFP 2 motion and a trust account statement. 1 (ECF No. 5.) 3 I. Screening Pursuant to 28 U.S.C. §§ 1915 (e)(2) 4 A. Legal Standard 5 Plaintiff’s Complaint requires a pre-answer screening pursuant to 28 U.S.C. 6 § 1915(e)(2). Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curium) (holding 7 1915(e)(2) screening applies to non-prisoners proceeding IFP). Under this statute, the 8 Court must sua sponte dismiss an IFP complaint, or any portion of it, which is frivolous, 9 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 10 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 11 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 12 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous 13 or malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 14 903 , 920 n.1 (9th Cir. 2014) (citation omitted). 15 “The standard for determining whether a plaintiff has failed to state a claim upon 16 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 17 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 18 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 19 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 20 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 21 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 22 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 23 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121 . [26] 27 1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (concluding a pro se prisoner’s documents are deemed filed “at the time . . . [it is] delivered . . . to the prison authorities for forwarding [28] 1 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 2 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 3 Iqbal, 556 U.S. at 678 . “Determining whether a complaint states a plausible claim for relief 4 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 5 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 6 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 7 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 8 “Section 1983 creates a private right of action against individuals who, acting under 9 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, [10] 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 11 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 12 Graham v. Connor, 490 U.S. 386 , 393‒94 (1989) (internal quotation marks and citations 13 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right 14 secured by the Constitution and laws of the United States, and (2) that the deprivation was 15 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 16 F.3d 1128, 1138 (9th Cir. 2012) (citation omitted). 17 B. Plaintiff’s Factual Allegations 18 Plaintiff alleges he was sentenced to six years in prison for trespassing and violating 19 his probation and has been in custody for twenty-one months. (ECF No. 1 at 3.) In May of 20 2022, he was transferred from Wasco State Prison and told he “would be given an option 21 or opportunity to be released on ankle monitoring.” (Id.) Instead, he was sent to the 22 California Health Care Facility. (Id.) Because of a detainer from Marin County, Plaintiff 23 has not been released. (Id.) Plaintiff claims the deadline for Marin County to act on the 24 detainer has passed. (ECF No. 1 at 3.) He claims this is a violation of his Eighth 25 Amendment rights and that he is being illegally confined and subjected to false 26 imprisonment. (Id.) 27 C. Discussion [28] 1 To the extent Plaintiff asks this Court to order his release, he must proceed via a 2 habeas corpus petition and not a Section 1983 action. A Section 1983 action is a proper 3 remedy for a state prisoner who is making a constitutional challenge to the conditions of 4 his prison life, but not to the fact or length of his custody. See Preiser v. Rodriguez, 411 5 U.S. 475 , 499–500 (1973) (challenges to the fact or duration of confinement must brought 6 by petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 ); Nettles v. Grounds, [7] 830 F.3d 922, 935 (9th Cir. 2016). The sole federal remedy for a challenge which seeks a 8 determination that a plaintiff is entitled to immediate release or a speedier release from that 9 imprisonment, however, is a petition for writ of habeas corpus. Preiser, 411 U.S. at 499– 10 500; Nettles, 830 F.3d at 935 .2 11 Further, aside from Plaintiff’s failure to explain how this Court is involved in the 12 alleged constitutional violations, the Court is not a proper defendant to this action because 13 the Southern District of California, who Plaintiff names as the sole Defendant, is not a 14 “person” under Section 1983. “Persons” under Section 1983 are state and local officials 15 sued in their individual capacities, private individuals and entities which act under color of 16 state law, or the local governmental entity itself. See Vance v. Cnty. of Santa Clara, 928 17 F. Supp. 993 , 995‒96 (N.D. Cal. 1996). A United States District Court is not a person 18 within the meaning of Section 1983. See Baize v. U.S. Dist. Court, S. Dist. of Cal., No. 2119 cv-01262-BAS-KSC, 2021 WL 4865517 , at *2 (S.D. Cal. Oct. 19, 2021); Reinhardt v. 20 Beck, No. 1:11-cv-01015-OWW-SKO, 2011 WL 2909872 , at *2 (E.D. Cal. July 15, 2011). [22] 23 2 Plaintiff may raise his challenge to his continued detention in a federal habeas corpus action once he has exhausted the claim in state court. To properly exhaust his claim, [24] Plaintiff must present the California Supreme Court with a fair opportunity to rule on the 25 merits of the claim and he must allege, in state court, how one or more of his or her federal rights have been violated. 28 U.S.C. § 2254 (b), (c); Granberry v. Greer, 481 U.S. 129 , [26] 133–34 (1987); Duncan v. Henry, 513 U.S. 364 , 365–66 (1995). For example, “[i]f a 27 habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only [28] 1 In addition, it does not appear that the United States District Court for the Southern 2 District of California is the proper venue for any claims Plaintiff may have. Venue may be 3 raised by a court sua sponte where the defendant has not yet filed a responsive pleading 4 and the time for doing so has not run. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 5 1986). Section 1391(b) of Title 28 of the U.S. Code provides, in pertinent part, that a “civil 6 action may be brought in–(1) a judicial district in which any defendant resides, if all 7 defendants are residents of the State in which the district is located; [or] (2) a judicial 8 district in which a substantial part of the events or omissions giving rise to the claim 9 occurred, or a substantial part of property that is the subject of the action is situated[.]” 28 10 U.S.C. § 1391 (b); Costlow, 790 F.2d at 1488 ; Decker Coal Co. v. Commonwealth Edison 11 Co., 805 F.2d 834, 842 (9th Cir. 1986). “The district court of a district in which is filed a 12 case laying venue in the wrong division or district shall dismiss, or if it be in the interests 13 of justice, transfer such case to any district or division in which it could have been brought.” [14] 28 U.S.C. § 1406 (a). 15 Plaintiff alleges that the events or omissions giving rise to his claims occurred at 16 either Wasco State Prison in Wasco, California, which is located in Kern County, or the 17 California Health Care Facility in Stockton, California, which is located in San Joaquin 18 County. (ECF No. 1 at 3.) Both Kern County and San Joaquin County are within the 19 jurisdictional boundaries of the United States District Court for the Eastern District of 20 California. See 28 U.S.C. § 84 (d). No claim is alleged to have arisen and no proper 21 Defendant is alleged to reside in either San Diego or Imperial County. See 28 U.S.C. 22 § 84(d). Therefore, the Court finds venue is not proper in the Southern District of 23 California. See 28 U.S.C. § 1391 (b); Costlow, 790 F.2d at 1488 . 24 Given Plaintiff’s pro se status, the Court would normally grant him leave to amend 25 to attempt to sufficiently allege a claim if he can. Here, however, “it is absolutely clear that 26 the deficiencies of the complaint could not be cured by amendment.” See Rosati v. 27 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (internal quotation marks omitted). [28] 1 || Accordingly, the Court dismisses this action without leave to amend and without prejudice 2 || to Plaintiff pursuing his claims in the proper venue. [3] 4 II. Motion to Proceed in Forma Pauperis [ECF No. 5] 5 Because the Court is dismissing this action without prejudice and without leave to 6 ||amend, Plaintiff's motion to proceed IFP (ECF No. 5) is DENIED as moot. 7 III. Conclusion and Order 8 Based on the foregoing, the Court: 9 1) DENIES Plaintiff's Motion to Proceed In Forma Pauperis (ECF No. 5); 10 2) DISMISSES Plaintiff's Complaint (ECF No. 1) sua sponte without prejudice 11 without leave to amend for failing to state a claim upon which relief may be granted 12 || pursuant to 28 U.S.C. § 1915 (e)(2) and 28 U.S.C. § 1915A. 13 IT IS SO ORDERED. [14] !5 || DATED: December 7, 2023 (pill A (Syohan. 6 16 Usited Miates District Judge [28] 6 ee ee