(PC) Van den Heuvel v. Clark

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JOHN MARK VAN DEN HEUVEL, No. 2:23-CV-0708-KJM-DMC-P 12 Plaintiff, 13 v. ORDER ADAM CLARK, 15 Defendant.

17 Plaintiff, who is proceeding pro se, brings this civil rights action pursuant to 42 18 U.S.C. § 1983. Pending before the Court is Plaintiff’s first amended complaint, ECF No. 13.

19 The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). This provision also applies if the plaintiff was incarcerated at the time the action was initiated even if the litigant was subsequently released from custody. See Olivas v. Nevada ex rel.

23 Dep’t of Corr., 856 F.3d 1281, 1282 (9th Cir. 2017). The Court must dismiss a complaint or portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover, the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege with at least some degree of particularity overt acts by specific defendants which support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it is impossible for the Court to conduct the screening required by law when the allegations are vague and conclusory.

8 This case proceeds on Plaintiff’s first amended complaint filed as of right on August 28, 2023. See ECF No. 13. Plaintiff names attorney Adam Clark as the sole defendant.

10 See id. at 1. Plaintiff’s allegations are somewhat difficult to discern, but it appears Plaintiff is alleging that Defendant Clark provided ineffective representation in the context of criminal proceedings in the El Dorado County Superior Court. See id. Plaintiff was in custody when the action was initiated, see id., but has since been released, see ECF No. 8. It is unclear from the complaint whether Plaintiff’s former incarceration was a result of a conviction arising from the referenced criminal proceedings.

16 As currently presented, it appears that Plaintiff’s complaint may be barred because it amounts to an improper collateral challenge to a state criminal conviction. When a state prisoner challenges the legality of his custody and the relief he seeks is a determination that he is entitled to an earlier or immediate release, such a challenge is not cognizable under 42 U.S.C. § 20 1983 and the prisoner’s sole federal remedy is a petition for a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (per curiam). Thus, where a § 1983 action seeking monetary damages or declaratory relief alleges constitutional violations which would necessarily imply the invalidity of the prisoner’s underlying conviction or sentence, or the result of a prison disciplinary hearing resulting in imposition of a sanction affecting the overall length of confinement, such a claim is not cognizable under § 1983 unless the conviction or sentence has first been invalidated on appeal, by habeas petition, or through some similar proceeding. See Heck v. Humphrey, 512 U.S. 477, 483-84 (1994) (concluding that § 1983 claim not cognizable because allegations were akin to malicious prosecution action which includes as an element a finding that the criminal proceeding was concluded in plaintiff’s favor).

3 In this case, Plaintiff appears to allege that Defendant Clark provided ineffective assistance of counsel during the course of criminal proceedings against Plaintiff in state court. If this is indeed the gravamen of Plaintiff’s claim, the action would be barred because success on the merits of Plaintiff’s claim of ineffective assistance of counsel would necessarily imply the invalidity of the underlying conviction. Further, it is unclear whether the underlying conviction Plaintiff appears to challenge in this case has been invalidated or otherwise overruled or set aside, which would be a prerequisite for this action to proceed. Plaintiff will be provided an opportunity to amend to clarify his allegations against Defendant Clark.

11 Because it is possible that the deficiencies identified in this order may be cured by amending the complaint, Plaintiff is entitled to leave to amend prior to dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus, following dismissal with leave to amend, all claims alleged in the original complaint which are not alleged in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An amended complaint must be complete in itself without reference to any prior pleading. See id. 21 If Plaintiff chooses to amend the complaint, Plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of Plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how each named defendant is involved and must set forth some affirmative link or connection between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

27 / / / / / / ] Finally, Plaintiff is warned that failure to file an amended complaint within the || time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at 3 || 1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply | with Rule 8 may, in the Court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

5 || See Neviyel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiff's first amended complaint is dismissed with leave to amend; and 8 2. Plaintiff shall file a second amended complaint within 30 days of the date || of service of this order.

11 | Dated: May 21, 2024 Ss..c0_, DENNIS M. COTA 13 UNITED STATES MAGISTRATE JUDGE