Rubio v. Ramirez
| Decision Date | 01 July 2013 |
| Docket Number | Case No.: 1:13-cv-0199-LJO-JLT (PC) |
| Parties | TEODOCIO RUBIO, SR., Plaintiff, v. GENARO RAMIREZ, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
DISMISSAL OF THE FIRST AMENDED
COMPLAINT WITHOUT LEAVE TO AMEND
(Doc. 10)
Plaintiff Teodocio Rubio, Sr., ("Plaintiff") is a state prisoner proceeding pro se in a civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1 and 10). Plaintiff alleges he was improperly denied parole. The court previously screened Plaintiff's complaint and dismissed it with leave to amend. Now, despite being previously advised of the requirements of Fed. R. Civ. P. 8(a), Plaintiff submits his 130-page first amended on June 20, 2013. (Doc. 10). Nonetheless, the Court screens the complaint according to 28 U.S.C. § 1915(e)(2)(B).
For the reasons set forth below, the Court finds that Plaintiff again fails to state a complaint and recommends the first amended complaint be DISMISSED without leave to amend.
Under 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a case in which the plaintiff proceeds in forma pauperis if the court determines that the case "fails to state a claim on which relief may be granted" or is "frivolous." Similarly, dismissal must also be done on these grounds notwithstandingpayment of any filing fee. Id. A claim is frivolous "when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992).
"Pro se documents are to be liberally construed" and "'must be held to 'less stringent standards than formal pleadings drafted by lawyers.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "[They] can only be dismissed for failure to state a claim if it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. Under Federal Rule of Civil Procedure 8(a), "[a] pleading that states a claim for relief must contain: (1) a short and plaint statement of the grounds for the court's jurisdiction, . . . ; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought." Fed. R. Civ. P. 8(a). Each allegation must be simple, concise, and direct. Fed. R. Civ. P. 8(d)(1). While a complaint "does not need detailed factual allegations, a Plaintiff's obligation to provide the 'grounds' of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal quotation marks and citations omitted).
In analyzing a pleading, the Court sets conclusory factual allegations aside, accepts all non-conclusory factual allegations as true, and determines whether those non-conclusory factual allegations accepted as true state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 676-684 (2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." (Id. at 678) (internal quotation marks and citation omitted). In determining plausibility, the Court is permitted "to draw on its judicial experience and common sense." Id. at 679.
In order to sustain a cause of action under 42 U.S.C. § 1983, a plaintiff must show (i) that he suffered a violation of rights protected by the Constitution or created by federal statute, and (ii) thatthe violation was proximately caused by a person acting under color of state law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The causation requirement of § 1983 is satisfied only if a plaintiff demonstrates that a defendant did an affirmative act, participated in another's affirmative act, or omitted to perform an act which he was legally required to do that caused the deprivation of which the plaintiff complains. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981) (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)). 42 U.S.C. § 1983 does not create substantive rights, but rather serves as a vehicle to protect federal rights which have been established elsewhere. Graham v. Connor, 490 U.S. 386, 393-394 (1989).
Plaintiff is a state prisoner incarcerated at California Substance Abuse Treatment Facility and State Prison ("CSATF-SP"), located in Corcoran, California, serving an indeterminate life sentence with the possibility of parole. (Doc. 10 at 6). Plaintiff sues all Defendants in their individual and official capacities, seeking declaratory relief and ten million dollars in punitive damages. Id. at 4, 10. Plaintiff fails to clearly set forth a plain statement of the facts, nonetheless, the Court has read the pleading and Plaintiff's complaint is summarized, to the best of the Court's ability, as follows:
At a parole eligibility hearing on October 27, 2009, Plaintiff's attorney informed Defendants Ramirez, O'Hara, and Denvir that a certain report concerning his prior criminal record was false. (Doc. 10 at 8). It appears, however, that Defendant Ramirez advised the parole board of the allegations contained in the allegedly false report on October 27, 2009, and October 2, 2012. Id. at 9. Defendant Ramirez insisted that he had evidence to prove the allegations contained in the report. Id. Accordingly, Defendants Labhan, Kevorkian, O'Hara, and Denvir found Plaintiff ineligible for parole. Id. at 10-11. The false report about Plaintiff's prior criminal history seemingly provided a basis for their decision to deny Plaintiff parole. Id. at 11.
Plaintiff again brings suit against Defendants in their official and individual capacities. See (Doc. 10 at 5). However, naming an employee in his or her official capacity is "in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 165-166(1985); Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). The Eleventh Amendment provides immunity to any State in any type of lawsuit "... in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend XI. "[N]either a State nor its officials acting in their official capacities are 'persons' under § 1983." Will, 491 U.S. at 71. Therefore, the Court RECOMMENDS that the first amended complaint against Defendants in their official capacities be DISMISSED.
In Claim I, Plaintiff alleges that Defendants violated his Fifth Amendment right against self-incrimination.1 (Doc. 10 at 17). Under the Fifth Amendment of the United States Constitution, a witness cannot be compelled to testify against himself in a criminal proceeding. U.S. Const. amend. V; Minnesota v. Murphy, 465 U.S. 420, 426 (1984). The prohibition against self-incrimination also applies to "any other proceeding, civil or criminal, formal or informal, where the answers [to interrogations] might incriminate [a party] in further criminal proceedings." Murphy, 465 at 426. To prove a Fifth Amendment violation, a plaintiff must establish that (1) the elicited testimony carried a threat of incrimination, and (2) the penalty suffered was essentially compulsion. U.S. v. Antelope, 395 F.3d 1128, 1134 (9th Cir. 2005). A "real and appreciable" risk of incrimination may exist where a party must reveal the entirety of his or her past crimes as part of a court-mandated treatment program and such revelations could land in the "hands of prosecutors." See Antelope, 395 F.3d at 1135.
The second element of the Fifth Amendment test analyzes "whether the government has sought to impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself." Antelope, 395 F.3d at 1135. In determining which penalties amount to unconstitutional compulsion, "[c]ourts must decide whether the consequences of an inmate's choice to remain silent are closer to the physical torture against which the Constitution clearly protects or the de minimis harms against which it does not." McKune v. Lile, 536 U.S. 24, 26 (2002)(participation in a therapy program that required full disclosure of sexual history while offeringinmates minimal incentives to participate did not amount to compelled self-compelled incrimination).
Plaintiff again indicates that Defendants requested that he admit to certain facts concerning his prior criminal history, which, under Antelope, would most certainly qualify as revelations that could subject Plaintiff to future prosecution. While Plaintiff alleges that parole board members refused to grant his parole because he refused to admit the false allegations, (Doc. 10 at 11), the inescapable fact is that Plaintiff never testified against himself. Thus, exactly how the Fifth Amendment was violated is not clear. Instead, Plaintiff is serving a life sentence for conviction of other crimes and parole is only a possibility, not a guarantee. Thus, the "harm" which Plaintiff alleges—the failure to grant him parole—is speculative. Thus, Plaintiff has failed to state a claim under the Fifth Amendment and the Court recommends that this Claim I be DISMISSED.
In Claim II, Plaintiff asserts a Fourteenth Amendment procedural due process claim against Defendants for the denial of his parole. (Doc. 10 at 19-20). The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). A plaintiff alleging a procedural due...
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