1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PETER JON ELLIS, No. 2:20-cv-00290 CKD P 12 Plaintiff, 13 v. ORDER 14 EL DORADO COUNTY SHERIFF’S

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15 FORCE, et al., 16 Defendants. 17 18 Plaintiff is a county jail inmate proceeding pro se and seeking relief pursuant to 42 U.S.C. 19 § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 20 636(b)(1). 21 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 22 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 24 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 25 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 26 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 27 month’s income credited to plaintiff’s inmate trust account. These payments will be forwarded 28 by the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 1 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 8 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 9 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 10 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 11 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 12 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 13 Cir. 1989); Franklin, 745 F.2d at 1227. 14 In order to avoid dismissal for failure to state a claim a complaint must contain more than 15 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 16 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 17 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 18 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 19 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 20 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 22 at 678. When considering whether a complaint states a claim upon which relief can be granted, 23 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 24 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 25 U.S. 232, 236 (1974). 26 In the complaint, plaintiff asserts that he was wrongfully charged with felony child 27 endangerment by the El Dorado County Sheriff’s Department in May 2017, and that his 28 appointed counsel provided ineffective assistance by failing to investigate the charge. (ECF No. 1 1 at 6-7.) Plaintiff states that he filed a post-judgment motion in December 2019, seeking to 2 withdraw his plea. (Id. at 7.) 3 A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the correct method for a prisoner 4 to challenge the legality or duration of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th 5 Cir.1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes 6 to Habeas Rule 1, 1976 Adoption. Insofar as plaintiff challenges the criminal proceedings 7 resulting in his confinement, his claims are not cognizable in § 1983. 8 Second, plaintiff’s claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). The 9 Heck bar preserves the rule that federal challenges, which, if successful, would necessarily imply 10 the invalidity of incarceration or its duration, must be brought by way of petition for writ of 11 habeas corpus, after exhausting appropriate avenues of relief. Muhammad v. Close, 540 U.S. 12 749, 750–751 (2004). Accordingly, “a state prisoner’s [section] 1983 action is barred (absent 13 prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target 14 of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)—if 15 success in that action would necessarily demonstrate the invalidity of confinement or its 16 duration.” Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005). 17 Here it appears that if plaintiff prevails on his claims a judgment in his favor will 18 necessarily imply the invalidity of his conviction and sentence. Consequently, plaintiff’s §1983 19 action cannot proceed unless and until his conviction is invalidated as required by Heck. 20 Thus the complaint will be dismissed. Plaintiff will be granted one opportunity to amend 21 the complaint in order to show that the conviction that is the subject of this action has been 22 invalidated, or any other reason why the Heck bar does not apply. 23 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 24 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 25 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 26 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 27 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 28 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory

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1 | allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 2 | Regents, 673 F.2d 266, 268 (9th Cir. 1982). 3 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 4 | make plaintiff's amended complaint complete. Local Rule 220 requires that an amended 5 | complaint be complete in itself without reference to any prior pleading. This is because, as a 6 | general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 7 | F.2d 55, 57 (th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 8 | longer serves any function in the case. Therefore, in an amended complaint, as in an original 9 | complaint, each claim and the involvement of each defendant must be sufficiently alleged. 10 In accordance with the above, IT IS HEREBY ORDERED that: 11 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 5) is granted. 12 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 13 | shall be collected and paid in accordance with this court’s order to the Sheriff of El Dorado 14 | County filed concurrently herewith. 15 3. Plaintiff's complaint is dismissed. 16 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 17 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 18 | Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 19 | number assigned this case and must be labeled “Amended Complaint.” Failure to file an 20 || amended complaint in accordance with this order will result in a recommendation that this action 21 | be dismissed. 22 | Dated: April 16, 2020 Ci dp. f | fe 28 CAROLYN K. DELANEY 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 || 2/ellis0O290.Screen Out Complaint 28