UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

DWAYNE TALLEN HOUSTON, Case No. 2:24-cv-00456-DCN Plaintiff, INITIAL REVIEW ORDER BY v. SCREENING JUDGE

BRANDON MACKABEE,

Defendant.

The Clerk of Court conditionally filed Plaintiff Dwayne Tallen Houston’s Complaint because of Plaintiff’s status as an inmate and in forma pauperis request. A “conditional filing” means that a plaintiff must obtain authorization from the Court to proceed. Upon screening, the Court must dismiss claims that are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief.

(e)(2)(B) and 1915A(b). Having reviewed the record, the Court concludes that the Complaint fails to state a claim upon which relief may be granted. Accordingly, the Court enters the following Order directing Plaintiff to file an amended complaint if Plaintiff intends to proceed. 1. Standards of Law for Screening Complaints A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint fails to state a claim for relief under Rule 8 if the factual assertions in the complaint, taken as true, are insufficient for the reviewing court plausibly “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

(2009). To state an actionable claim, a plaintiff must provide “enough factual matter (taken as true) to suggest” that the defendant committed the unlawful act, meaning that sufficient

facts are pled “to raise a reasonable expectation that discovery will reveal evidence of illegal [activity].” Bell Atl. Corp. v. Twombly,

(2007). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 US. at 678 (quoting Twombly,

). The Court liberally construes the pleadings to determine whether a case should be

dismissed for a failure to plead sufficient facts to support a cognizable legal theory or for the absence of a cognizable legal theory. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable factual and legal basis. See Jackson v. Arizona,

(9th Cir. 1989) (discussing Federal Rule of Civil Procedure 12(b)(6)), superseded by statute on other grounds as stated in Lopez v. Smith,

(9th Cir. 2000). Moreover, even if a complaint meets the pleading requirements, dismissal under §§ 1915 and 1915A is still appropriate if an affirmative defense is an “obvious bar to securing relief on the face of the complaint.” Washington v. Los Angeles Cnty. Sheriff’s Dep’t,

(9th Cir. 2016) (internal quotation marks omitted).

2. Factual Allegations Plaintiff is a prisoner in the custody of the Idaho Department of Correction. The events giving rise to Plaintiff’s claims occurred before he was arrested and incarcerated. Plaintiff alleges that in July 2023, he was involved in a verbal altercation with Defendant Brandon Mackabee, a police officer with the Post Falls Police Department. Compl., Dkt. 3, at 2. Plaintiff used the word, “boy,” which Mackabee claimed had a racial connotation. The incident then escalated, resulting in Plaintiff being charged with

malicious harassment.

Plaintiff alleges that Mackabee’s actions violated Plaintiff’s First Amendment right to free speech and constituted a crime under

.

at 1–2. 3. Discussion Plaintiff has not stated a claim upon which relief may be granted. The Court will,

however, grant Plaintiff 28 days to amend the Complaint. Any amended complaint should take into consideration the following. A. Section 1983 Claims Plaintiff brings claims under

, the civil rights statute. To state a plausible civil rights claim, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting

under color of state law. Crumpton v. Gates,

(9th Cir. 1991). A defendant causes a constitutional deprivation within the meaning of § 1983 “if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation.” Johnson v. Duffy,

(9th Cir. 1978).

Plaintiff claims that his arrest for malicious harassment violated his right to free speech under the First Amendment. However, it appears Plaintiff’s claims may be barred by the doctrine announced in Heck v. Humphrey,

(1994). In Heck, the United States Supreme Court held that a civil rights claim “is not cognizable under § 1983”—meaning the claim cannot be maintained—if the plaintiff’s success on the claim would “render a conviction or sentence invalid.” Id. at 486–87. That

is, if a favorable verdict in a civil rights action “would necessarily imply the invalidity” of the plaintiff’s conviction, the plaintiff must first show that “the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Id. at 487. As the Supreme Court later clarified, “a

state prisoner’s § 1983 action is barred (absent prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)—if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson,

, 81–82 (2005).

Here, Plaintiff is incarcerated, which implies he was convicted of the malicious harassment charge. The website of the Idaho Department of Correction lists Plaintiff as having been convicted of malicious harassment. See IDOC Resident/Client Search, https://www.idoc.idaho.gov/content/prisons/resident-client-search (accessed Dec. 4, 2024). If Plaintiff was indeed convicted of the malicious harassment charge, then his First

Amendment claim is barred by Heck unless Plaintiff establishes that the conviction has been invalidated. In any amended complaint, Plaintiff should explain the status of the malicious harassment charge and explain how that charge is related to his current incarceration. B. Claims under

Plaintiffs also asserts a violation of

, which provides for criminal liability for certain deprivations of civil rights. However, this criminal statute does not give

rise to civil liability. Allen v. Gold Country Casino,

(9th Cir. 2006). Therefore, Plaintiff’s § 242 claim is implausible. 4. Standards for Amended Complaint If Plaintiff chooses to amend the Complaint, Plaintiff must demonstrate how the actions complained of have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy,

(9th Cir. 1980), abrogated on other grounds by Kay v. Ehrler,

(1991). Plaintiff must also allege a sufficient causal connection between each defendant’s actions and the claimed deprivation. Taylor, 880 F.2d at 1045; Johnson v. Duffy,

(9th Cir. 1978). “Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss” or to survive screening under 28 U.S.C. § 1915A. Ivey v. Bd. of Regents of Univ. of Alaska,

(9th Cir. 1982); see also Iqbal,

(“Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.”) (internal quotation marks and alteration omitted). Rather, for each cause of action against each defendant, Plaintiff must state the following: (1) the name of the person or entity that caused the alleged deprivation of

Plaintiff’s constitutional rights; (2) facts showing the defendant is a state actor (such as state employment or a state contract) or a private entity performing a state function; (3) the dates on which the conduct of the defendant allegedly took place; (4) the specific conduct or action Plaintiff alleges is unconstitutional; (5) the particular constitutional or statutory provision Plaintiff alleges has been violated; (6) facts alleging the elements of the violation are met; (7) the injury or damages Plaintiff personally suffered; and (8) the particular type

of relief Plaintiff is seeking from each defendant. In addition, Plaintiff must include facts showing that his claims are not barred by Heck v. Humphrey, as explained above. Further, any amended complaint must contain all of Plaintiff’s allegations in a single pleading and cannot rely upon, attach, or incorporate by reference other pleadings or documents. Dist. Idaho Loc. Civ. R. 15.1 (“Any amendment to a pleading, whether filed

as a matter of course or upon a motion to amend, must reproduce the entire pleading as amended. The proposed amended pleading must be submitted at the time of filing a motion to amend.”); see also Forsyth v. Humana, Inc.,

(9th Cir. 1997) (“[An] amended complaint supersedes the original, the latter being treated thereafter as non- existent.”), overruled in part on other grounds by Lacey v. Maricopa Cnty.,

,

(9th Cir. 2012) (en banc); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc.,

(9th Cir. 1990) (holding that the district court erred by entering judgment against a party named in the initial complaint, but not in the amended complaint). Plaintiff must set forth each different factual allegation in a separate, numbered paragraph. The amended complaint must be legibly written or typed in its entirety, and it

should be clearly designated as an “Amended Complaint.” Plaintiff’s name and address should be clearly printed at the top left corner of the first page of each document filed with the Court. If Plaintiff files an amended complaint, Plaintiff must also file a “Motion to Review the Amended Complaint.” If Plaintiff does not amend within 28 days, or if the amendment does not comply with Rule 8, this case may be dismissed without further notice. See Knapp v. Hogan,

(9th Cir. 2013) (“When a litigant knowingly and repeatedly

refuses to conform his pleadings to the requirements of the Federal Rules, it is reasonable to conclude that the litigant simply cannot state a claim.”). ORDER IT IS ORDERED: 1. The Complaint fails to state a claim upon which relief may be granted.

Plaintiff has 28 days within which to file an amended complaint as described above. If Plaintiff does so, Plaintiff must file (along with the amended complaint) a Motion to Review the Amended Complaint. Alternatively, Plaintiff may file a Notice of Voluntary Dismissal if Plaintiff no longer intends to pursue this case.1

2. If Plaintiff does not file a timely amended complaint, this case may be dismissed with prejudice and without further notice for failure to state a claim upon which relief may be granted, failure to prosecute, or failure to comply with a Court order. See 28 U.S.C. § 1915A; Fed. R. Civ. P. 41(b). 3. Because an amended complaint is required for Plaintiff to proceed, Plaintiff’s

request for appointment of counsel (contained in the Complaint) is DENIED

1 A voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1) is not a dismissal for frivolity, for maliciousness, or for failure to state a claim upon which relief may be granted and, therefore, does not count as a “strike” under

(g). without prejudice. Plaintiff may renew the request for counsel in an amended complaint.

a DATED: February 6, 2025

mM } — = Z David C. Nye Chief U.S. District Court Judge

INITIAL REVIEW ORDER BY SCREENING JUDGE - 8