1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 PATRICK JOSEPH KELLEY, Case No. 2:21-cv-01794-KJM-JDP (PC) 10 Plaintiff, ORDER GRANTING PLAINTIFF’S

APPLICATION TO PROCEED IN FORMA

11 v. PAUPERIS 12 DEPARTMENT OF CORRECTIONS, ECF No. 6 13 Defendant. SCREENING ORDER THAT PLAINTIFF: 14 (1) STAND BY HIS COMPLAINT

SUBJECT TO DISMISSAL, OR

15 (2) FILE AN AMENDED 16 COMPLAINT 17 ECF No. 1 18 THIRTY-DAY DEADLINE 19 20 Plaintiff alleges that defendant Department of Corrections (“CDCR”) violated his rights 21 by refusing a federal judge’s order to release him on parole. ECF No. 1 at 5. Plaintiff was 22 eventually released but claims that he was held back from his parole for eight and a half months. 23 Id. He seeks monetary damages for each day his release was delayed. Id. at 6. His allegations do 24 not state a cognizable claim because the CDCR is not a viable defendant in a section 1983 action. 25 I will give plaintiff an opportunity to amend his complaint and substitute a viable defendant. I 26 will also grant his application to proceed in forma pauperis. ECF No. 6. 27

28 1 Screening and Pleading Requirements 2 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 3 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 4 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 5 claim upon which relief may be granted, or that seeks monetary relief from a defendant who is 6 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 7 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 8 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 9 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 10 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 11 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 12 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 13 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 14 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 15 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 16 n.2 (9th Cir. 2006) (en banc) (citations omitted). 17 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 18 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 19 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 20 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 21 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 22 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 23 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 24 Analysis 25 The only defendant named in this action is the CDCR, a California state agency. States 26 and their agencies are protected by the Eleventh Amendment and, thus, cannot be sued without 27 their consent. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (“[I]n the 28 absence of consent a suit in which the State or one of its agencies or departments is named as the 1 || defendant is proscribed by the Eleventh Amendment.”).' Plaintiff may amend to add a viable 2 | defendant. 3 If plaintiff decides to file an amended complaint, the amended complaint will supersede 4 | thecurrent complaint. See Lacey v. Maricopa County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en 5 | banc). This means that the amended complaint will need to be complete on its face without 6 | reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended complaint is 7 | filed, the current complaint no longer serves any function. Therefore, in an amended complaint, 8 | as in an original complaint, plaintiff will need to assert each claim and allege each defendant’s 9 | mvolvement in sufficient detail. The amended complaint should be titled “Amended Complaint” 10 | and refer to the appropriate case number. If plaintiff does not file an amended complaint, I will 11 || recommend that this action be dismissed. 12 Accordingly, it is ORDERED that: 13 1. Plaintiff’s application to proceed in forma pauperis, ECF No. 6, is GRANTED. 14 2. Within thirty days from the service of this order, plaintiff must either file an 15 | Amended Complaint or advise the court he wishes to stand by his current complaint. If he selects 16 | the latter option, I will recommend that this action be dismissed. 17 3. Failure to comply with this order may result in the dismissal of this action. 18 4. The Clerk of Court is directed to send plaintiff a complaint form. 19 20 IT IS SO ORDERED. 21 ( - Dated: _ April 27, 2022 22 JEREMY D. PETERSON 54 UNITED STATES MAGISTRATE JUDGE

24 25 ' The Supreme Court has recognized three exceptions to this rule. First, the rule is 26 excepted where Congress abrogates Eleventh Amendment immunity. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). Second, “the Eleventh Amendment permits suits for 27 || prospective injunctive relief against state officials acting in violation of federal law.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004). The third exception is when the state has waived its 28 | immunity. None of these exceptions apply here, however.