1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 ROBERT JESSE CRUZ, 11 Case No. 21-cv-00859-JCS (PR) Plaintiff, 12 v. ORDER DISMISSING THE 13 COMPLAINT WITH LEAVE TO J. RICHARDS, et al., AMEND 14 Defendants. Dkt. No. 21 15
16 17 INTRODUCTION 18 Defendants move to dismiss plaintiff’s 42 U.S.C. § 1983 complaint under Federal 19 Rule of Civil Procedure 12(b)(6) on grounds that plaintiff failed to exhaust his 20 administrative remedies prior to filing suit on one of his claims, and that his claims are 21 unrelated and fail to state a claim for relief. (Dkt. No. 21.) Plaintiff has not filed any 22 response to the motion. 23 Defendants are correct. The complaint, which contains two claims, cannot proceed 24 as currently constituted. Plaintiff alleges (i) he has a poultry allergy; and (ii) he was 25 denied a pair of therapeutic boots. Both claims cannot proceed in this action because 26 (a) the claim are unrelated; (b) plaintiff did not exhaust his administrative remedies 27 regarding his therapeutic boots until after he filed suit, and (c) his claims against the 1 Accordingly, defendants’ motion to dismiss is GRANTED, and the complaint is 2 DISMISSED with leave to file an amended complaint on or before June 20, 2022. Failure 3 to file a proper amended complaint by June 20, 2022 will result in the dismissal of this suit 4 under Federal Rule of Civil Procedure 41(b) for failure to prosecute. 5 The parties have consented to magistrate judge jurisdiction for all purposes under 6 28 U.S.C. § 636(c). (Dkt. Nos. 3 and 16.) 7 BACKGROUND 8 Plaintiff alleges that he is allergic to poultry. (Compl., Dkt. No. 1 at 2.) According 9 to plaintiff, J. Richards, the Warden of Pelican Bay State Prison, has been aware of the 10 allergy for two years while “knowing my hand break[s]out in very bad rash, [and I have] 11 skin tearing open and bleeding.” (Id. at 3.) He asserts that Richards “is responsible for 12 everything employees do here.” (Id. at 2-3.) However, his allegations fail to connect 13 Richards (or anyone else) to any specific wrongdoing. 14 Plaintiff also alleges unnamed individuals denied him therapeutic boots that were 15 prescribed by his doctor. (Id. at 2.) The record shows that plaintiff did not exhaust his 16 administrative remedies regarding this claim prior to filing suit. This suit was filed on 17 February 3, 2021. But, according to materials plaintiff submitted to the Court, his 18 grievance was not exhausted until June 4, 2021, four months after suit was filed.1 19 (Plaintiff’s Lodging of Evidence, Dkt. No. 20 at 4.) He names as defendants the grievance 20 reviewers who denied his grievances. 21 STANDARD OF REVIEW 22 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be 23 granted if the complaint does not proffer “enough facts to state a claim for relief that is 24 plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 25 Dismissal is appropriate also when pleadings show a “lack of cognizable legal theory,” or 26 1 This grievance (PBSP HC 21000043) appears to be a duplicate of an earlier-filed 27 grievance. “Your issue regarding therapeutic boots will be no addressed herein as this is a 1 “the absence of sufficient facts alleged under a cognizable legal theory,” Balistreri v. 2 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (citation omitted), or when an 3 affirmative defense is premised on facts alleged in the complaint, Scott v. Kuhlmann, 746 4 F.2d 1377, 1378 (9th Cir. 1994). 5 DISCUSSION 6 I. Unrelated Claims 7 Because the two claims are unrelated by fact or defendant, plaintiff cannot bring 8 them in one action. Under Federal Rule of Civil Procedure 20, persons may be joined in 9 one action as defendants only if “(A) any right to relief is asserted against them jointly, 10 severally, or in the alternative with respect to or arising out of the same transaction, 11 occurrence, or series of transactions or occurrences; and (B) any question of law or fact 12 common to all defendants will arise in the action.” Plaintiff’s claim regarding his poultry 13 allergy and his claim regarding his therapeutic boots involve different defendants acting at 14 different times, and therefore fall afoul of Federal Rule of Civil Procedure 20. Plaintiff 15 must decide which one of his two claims he wishes to pursue in this suit. 16 II. Poultry Allergy 17 Plaintiff’s allegations regarding his poultry allergy fail to state any claim for relief. 18 He has not described any specific incident in which he was injured, nor named any person 19 who was directly responsible for any specific instance of an allergic reaction. 20 This is insufficient under federal pleading standards. A “complaint must contain 21 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 22 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 23 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 24 court to draw the reasonable inference that the defendant is liable for the misconduct 25 alleged.” Id. (quoting Twombly, 550 U.S. at 556). Furthermore, a court “is not required to 26 accept legal conclusions cast in the form of factual allegations if those conclusions cannot 27 1 reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 2 752, 754-55 (9th Cir. 1994). Because plaintiff has failed to allege any facts linking 3 responsibility to Richards or to anyone, he has failed to plead “factual content that allows 4 the court to draw the reasonable inference that the defendant is liable for the misconduct 5 alleged.” Iqbal, 556 U.S. at 678. 6 Also, plaintiff has not alleged facts showing that Richards (or anyone) had the 7 requisite state of mind to violate plaintiff’s Eighth Amendment rights. To show a violation 8 of the Eighth Amendment, a plaintiff must show (1) the deprivation alleged must be, 9 objectively, sufficiently serious, Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing 10 Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison official possesses a 11 sufficiently culpable state of mind, id. (citing Wilson, 501 U.S. at 297). In prison- 12 conditions cases, the necessary state of mind is one of “deliberate indifference.” Farmer, 13 511 U.S. at 834. 14 In composing his amended complaint, plaintiff should keep in mind the following. 15 Defendants cannot be held liable for a constitutional violation under 42 U.S.C. § 1983 16 unless they were integral participants in the unlawful conduct. Keates v. Koile, 883 F.3d 17 1228, 1241 (9th Cir. 2018).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 ROBERT JESSE CRUZ, 11 Case No. 21-cv-00859-JCS (PR) Plaintiff, 12 v. ORDER DISMISSING THE 13 COMPLAINT WITH LEAVE TO J. RICHARDS, et al., AMEND 14 Defendants. Dkt. No. 21 15
16 17 INTRODUCTION 18 Defendants move to dismiss plaintiff’s 42 U.S.C. § 1983 complaint under Federal 19 Rule of Civil Procedure 12(b)(6) on grounds that plaintiff failed to exhaust his 20 administrative remedies prior to filing suit on one of his claims, and that his claims are 21 unrelated and fail to state a claim for relief. (Dkt. No. 21.) Plaintiff has not filed any 22 response to the motion. 23 Defendants are correct. The complaint, which contains two claims, cannot proceed 24 as currently constituted. Plaintiff alleges (i) he has a poultry allergy; and (ii) he was 25 denied a pair of therapeutic boots. Both claims cannot proceed in this action because 26 (a) the claim are unrelated; (b) plaintiff did not exhaust his administrative remedies 27 regarding his therapeutic boots until after he filed suit, and (c) his claims against the 1 Accordingly, defendants’ motion to dismiss is GRANTED, and the complaint is 2 DISMISSED with leave to file an amended complaint on or before June 20, 2022. Failure 3 to file a proper amended complaint by June 20, 2022 will result in the dismissal of this suit 4 under Federal Rule of Civil Procedure 41(b) for failure to prosecute. 5 The parties have consented to magistrate judge jurisdiction for all purposes under 6 28 U.S.C. § 636(c). (Dkt. Nos. 3 and 16.) 7 BACKGROUND 8 Plaintiff alleges that he is allergic to poultry. (Compl., Dkt. No. 1 at 2.) According 9 to plaintiff, J. Richards, the Warden of Pelican Bay State Prison, has been aware of the 10 allergy for two years while “knowing my hand break[s]out in very bad rash, [and I have] 11 skin tearing open and bleeding.” (Id. at 3.) He asserts that Richards “is responsible for 12 everything employees do here.” (Id. at 2-3.) However, his allegations fail to connect 13 Richards (or anyone else) to any specific wrongdoing. 14 Plaintiff also alleges unnamed individuals denied him therapeutic boots that were 15 prescribed by his doctor. (Id. at 2.) The record shows that plaintiff did not exhaust his 16 administrative remedies regarding this claim prior to filing suit. This suit was filed on 17 February 3, 2021. But, according to materials plaintiff submitted to the Court, his 18 grievance was not exhausted until June 4, 2021, four months after suit was filed.1 19 (Plaintiff’s Lodging of Evidence, Dkt. No. 20 at 4.) He names as defendants the grievance 20 reviewers who denied his grievances. 21 STANDARD OF REVIEW 22 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be 23 granted if the complaint does not proffer “enough facts to state a claim for relief that is 24 plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 25 Dismissal is appropriate also when pleadings show a “lack of cognizable legal theory,” or 26 1 This grievance (PBSP HC 21000043) appears to be a duplicate of an earlier-filed 27 grievance. “Your issue regarding therapeutic boots will be no addressed herein as this is a 1 “the absence of sufficient facts alleged under a cognizable legal theory,” Balistreri v. 2 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (citation omitted), or when an 3 affirmative defense is premised on facts alleged in the complaint, Scott v. Kuhlmann, 746 4 F.2d 1377, 1378 (9th Cir. 1994). 5 DISCUSSION 6 I. Unrelated Claims 7 Because the two claims are unrelated by fact or defendant, plaintiff cannot bring 8 them in one action. Under Federal Rule of Civil Procedure 20, persons may be joined in 9 one action as defendants only if “(A) any right to relief is asserted against them jointly, 10 severally, or in the alternative with respect to or arising out of the same transaction, 11 occurrence, or series of transactions or occurrences; and (B) any question of law or fact 12 common to all defendants will arise in the action.” Plaintiff’s claim regarding his poultry 13 allergy and his claim regarding his therapeutic boots involve different defendants acting at 14 different times, and therefore fall afoul of Federal Rule of Civil Procedure 20. Plaintiff 15 must decide which one of his two claims he wishes to pursue in this suit. 16 II. Poultry Allergy 17 Plaintiff’s allegations regarding his poultry allergy fail to state any claim for relief. 18 He has not described any specific incident in which he was injured, nor named any person 19 who was directly responsible for any specific instance of an allergic reaction. 20 This is insufficient under federal pleading standards. A “complaint must contain 21 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 22 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 23 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 24 court to draw the reasonable inference that the defendant is liable for the misconduct 25 alleged.” Id. (quoting Twombly, 550 U.S. at 556). Furthermore, a court “is not required to 26 accept legal conclusions cast in the form of factual allegations if those conclusions cannot 27 1 reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 2 752, 754-55 (9th Cir. 1994). Because plaintiff has failed to allege any facts linking 3 responsibility to Richards or to anyone, he has failed to plead “factual content that allows 4 the court to draw the reasonable inference that the defendant is liable for the misconduct 5 alleged.” Iqbal, 556 U.S. at 678. 6 Also, plaintiff has not alleged facts showing that Richards (or anyone) had the 7 requisite state of mind to violate plaintiff’s Eighth Amendment rights. To show a violation 8 of the Eighth Amendment, a plaintiff must show (1) the deprivation alleged must be, 9 objectively, sufficiently serious, Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing 10 Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and (2) the prison official possesses a 11 sufficiently culpable state of mind, id. (citing Wilson, 501 U.S. at 297). In prison- 12 conditions cases, the necessary state of mind is one of “deliberate indifference.” Farmer, 13 511 U.S. at 834. 14 In composing his amended complaint, plaintiff should keep in mind the following. 15 Defendants cannot be held liable for a constitutional violation under 42 U.S.C. § 1983 16 unless they were integral participants in the unlawful conduct. Keates v. Koile, 883 F.3d 17 1228, 1241 (9th Cir. 2018). “A person deprives another ‘of a constitutional right, within 18 the meaning of section 1983, if he does an affirmative act, participates in another’s 19 affirmative acts, or omits to perform an act which he is legally required to do that causes 20 the deprivation of which [the plaintiff complains].” Leer v. Murphy, 844 F.2d 628, 633 21 (9th Cir. 1988) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). The inquiry 22 into causation must be individualized and focus on the duties and responsibilities of each 23 individual defendant whose acts or omissions are alleged to have caused a constitutional 24 deprivation. Id. 25 Plaintiff must be mindful about naming as defendants persons who occupy 26 supervisory positions, such as defendant Richards. There is no respondeat superior 27 liability under § 1983. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). This means 1 defendants; the plaintiff must show that the supervisor “participated in or directed the 2 violations, or knew of the violations and failed to act to prevent them.” Id. Furthermore, 3 supervisor defendants are entitled to qualified immunity where the allegations against them 4 are simply “bald” or “conclusory” because such allegations do not “plausibly” establish the 5 supervisors’ personal involvement in their subordinates’ constitutional wrong. Iqbal, 556 6 U.S. at 676 (noting no vicarious liability under Section 1983 or Bivens actions). 7 Accordingly, plaintiff’s poultry allergy claim is DISMISSED with leave to file it in 8 his amended complaint. Again, plaintiff must decide which one of his two claims he will 9 pursue. 10 III. Therapeutic Boots 11 As noted above, plaintiff did not exhaust his administrative remedies regarding his 12 therapeutic boots claim prior to filing suit. This suit was filed on February 3, 2021, but his 13 grievances were not exhausted until June 4, 2021, four months after suit was filed. 14 An action must be dismissed unless the prisoner exhausted his available 15 administrative remedies before he or she filed suit, even if the prisoner fully exhausts 16 while the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); see 17 Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006) (where administrative remedies 18 are not exhausted before the prisoner sends his complaint to the court it will be dismissed 19 even if exhaustion is completed by the time the complaint is actually filed). 20 Plaintiff’s claims against the grievance reviewers (T. McDaniel; B. Woods; and S. 21 Gates) are DISMISSED without leave to amend. Grievance reviewers are not responsible 22 for the underlying constitutional violation. Mere involvement in reviewing an inmate’s 23 administrative grievance does not necessarily demonstrate awareness of an alleged 24 violation, or contribute to the underlying violation. George v. Smith, 507 F.3d 605, 609 25 (7th Cir. 2007). “Only persons who cause or participate in the violations are responsible.” 26 Id. “Ruling against a prisoner on an administrative complaint does not cause or contribute 27 to the violation.” Id. 1 Plaintiff’s claims against the grievance reviewers fail for the additional reason that 2 they were simply following medical advice in denying him his boots. “On April 20, 2021, 3 you were seen by the primary care provider where it was noted you did not meet the 4 criteria for special orthotics at that time.”2 (Plaintiff’s Lodging of Evidence, Headquarters’ 5 Level Decision, Dkt. No. 20 at 3.) Plaintiff should consider naming as defendant(s) the 6 person(s) who denied him his boot accommodation, such as the doctor who examined and 7 denied him in 2021. 8 Plaintiff’s claim regarding his therapeutic boots is DISMISSED without prejudice 9 to raising it in his amended complaint. Again, plaintiff must decide which one of his two 10 claims he will pursue. 11 CONCLUSION 12 Defendants’ motion to dismiss is GRANTED. (Dkt. No. 21.) The complaint is 13 DISMISSED with leave to file an amended complaint on or before June 20, 2022. The 14 amended complaint must include the caption and civil case number used in this order (21- 15 00859 JCS (PR)) and the words FIRST AMENDED COMPLAINT on the first page. It 16 must address all deficiencies discussed above and appear on this Court’s form. Because an 17 amended complaint completely replaces the previous complaints, plaintiff must include in 18 his first amended complaint all the claims he wishes to present and all of the defendants he 19 wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may 20 not incorporate material from the prior complaint by reference. 21 If plaintiff does not file an amended complaint by June 20, 2022, or if the amended 22 complaint is insufficient, this suit will be dismissed under Federal Rule of Civil Procedure 23 41(b) for failure to prosecute. 24 It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 25 informed of any change of address by filing a separate paper with the clerk headed “Notice 26 of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask 27 1 || for an extension of time to do so. Failure to comply may result in the dismissal of this 2 || action pursuant to Federal Rule of Civil Procedure 41(b). 3 The Clerk shall terminate all pending motions. 4 IT IS SO ORDERED. 5 || Dated: May 3, 2022 Zo 6 JOSEPH C. SPERO 7 Chief Magistrate Judge 8 9 10 11 a 12
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