1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARTIN LEE FOSTER, No. 2:21-cv-01287-KJM-CKD P 12 Plaintiff, 13 v. ORDER AND 14 STATE OF CALIFORNIA FINDINGS AND RECOMMENDATIONS

DEPARTMENT OF DEVELOPMENTAL

15 SERVICES, 16 Defendant. 17 Plaintiff is a county inmate proceeding pro se in this civil rights action filed pursuant to 42 18 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636(b)(1). 20

I. Screening Requirement

21 The court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 24 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 25 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 26 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 27 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 28 1 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 2 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 3 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 4 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 5 Cir. 1989); Franklin, 745 F.2d at 1227. 6 In order to avoid dismissal for failure to state a claim a complaint must contain more than 7 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 8 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 10 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 11 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 12 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 13 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 14 at 678. When considering whether a complaint states a claim upon which relief can be granted, 15 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 16 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 17 U.S. 232, 236 (1974). 18 II. Allegations in the Complaint 19 At the time of filing the complaint, plaintiff was a pretrial detainee confined at the 20 Sacramento County Main Jail. Plaintiff alleges that his “state mental hospital assessment is 21 unpermitted, unwarranted and unauthorized by a presiding judge” and has resulted in his 22 unnecessary incarceration beyond the 28 day deadline for transferring him to a mental hospital 23 violating his right to a speedy trial. ECF No. 1 at 2. He names the State Department of 24 Developmental Services as the only defendant in this civil action seeking compensatory damages. 25 III. Legal Standards 26 The following legal standards are being provided to plaintiff based on his pro se status as 27 well as the nature of the allegations in his complaint. 28 ///// 1 A. Linkage Requirement 2 The civil rights statute requires that there be an actual connection or link between the 3 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 4 Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 5 (1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a 6 constitutional right, within the meaning of section 1983, if he does an affirmative act, participates 7 in another's affirmative acts or omits to perform an act which he is legally required to do that 8 causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th 9 Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must 10 link each named defendant with some affirmative act or omission that demonstrates a violation of 11 plaintiff's federal rights. 12 B. Eleventh Amendment 13 In his complaint plaintiff has named the Department of State Hospitals as the defendant. 14 However, the Eleventh Amendment serves as a jurisdictional bar to suits brought by private 15 parties against a state or state agency unless the state or the agency consents to such suit. See 16 Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam); 17 Jackson v. Hayakawa, 682 F.2d 1344, 1349-50 (9th Cir. 1982). 18 C. Habeas Versus § 1983 Action 19 Plaintiff has filed a § 1983 action challenging his ongoing confinement based on an 20 asserted speedy trial violation. However, when a state prisoner challenges the legality of his 21 custody and the relief he seeks is the determination of his entitlement to an earlier or immediate 22 release, his sole federal remedy is a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Preiser 23 v. Rodriguez, 411 U.S. 475, 500 (1973). Additionally, a federal habeas corpus action is only 24 available once plaintiff has been convicted and has exhausted his state court remedies. See 28 25 U.S.C. § 2254(b)(1)(A). 26 IV. Analysis 27 The court has reviewed plaintiff’s complaint and finds that it seeks monetary relief from a 28 defendant who is immune from suit and fails to state a claim upon which relief can be granted. In 1 the instant case, the State of California has not consented to suit. Accordingly, plaintiff’s claims 2 against the Department of Developmental Services are barred by the Eleventh Amendment and 3 must be dismissed. Even if plaintiff had identified a proper defendant, his claims for relief are not 4 cognizable in the present civil rights action because he appears to be challenging the legality of 5 his ongoing incarceration which is only appropriate in a habeas corpus petition. For all these 6 reasons, plaintiff’s complaint must be dismissed. For all these reasons, the undersigned 7 recommends dismissing plaintiff’s complaint. 8 Once the court finds that a complaint or claim should be dismissed for failure to state a 9 claim, the court has discretion to dismiss with or without leave to amend. Leave to amend should 10 be granted if it appears possible that the defects in the complaint could be corrected, especially if 11 a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); Cato v. 12 United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (“A pro se litigant must be given leave to 13 amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that 14 the deficiencies of the complaint could not be cured by amendment.” (citation omitted). 15 However, if, after careful consideration, it is clear that a claim cannot be cured by amendment, 16 the court may dismiss without leave to amend. Cato, 70 F.3d at 1105-06. 17 It appears to the court that amendment of this case would be futile because the claims 18 against defendant are barred by the Eleventh Amendment and because they are not cognizable in 19 the present civil rights action. Therefore, the undersigned recommends that these claims be 20 dismissed without leave to amend. Klamath-Lake Pharm. Ass’n v. Klamath Med. Serv. Bureau, 21 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be freely given, the 22 court does not have to allow futile amendments). 23 V. Plain Language Summary for Pro Se Party 24 The following information is meant to explain this order in plain English and is not 25 intended as legal advice. 26 The court has reviewed the allegations in your complaint and determined that the claims 27 against the defendant are barred by the Eleventh Amendment and do not state a claim for relief in 28 a civil rights action. It is recommended that your complaint be dismissed because these problems 1 || are not fixable. 2 If you disagree with this recommendation, you have 14 days to explain why it is not the 3 || correct outcome in your case. Label your explanation “Objections to Magistrate Judge’s Findings 4 | and Recommendations.” The district judge assigned your case will then review the case and 5 || make the final decision in this matter. 6 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma 7 || pauperis (ECF No. 4) is denied as unnecessary. 8 IT IS FURTHER RECOMMENDED that: 9 1. Plaintiff's complaint be dismissed without leave to amend; and, 10 2. The Clerk of Court be directed to close this case. 11 These findings and recommendations are submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 13 || after being served with these findings and recommendations, any party may file written 14 || objections with the court and serve a copy on all parties. Such a document should be captioned 15 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 16 || objections shall be served and filed within fourteen days after service of the objections. The 17 || parties are advised that failure to file objections within the specified time may waive the right to 18 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 19 | Dated: November 16, 2021 / □□□ / 4 ly a 20 CAROLYNK. DELANEY 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 12/fost1286.F&R.docx 28