Dawes v. The People of the State of California

Opinion

1 2 3 4 5 6 7 10 11 WILLIAM DAWES, Case No.: 3:19-cv-02122-MMA-WVG Booking #19760125, 12 ORDER GRANTING PLAINTIFF’S Plaintiff, 13 MOTION TO PROCEED IN FORMA vs. PAUPERIS; 14

THE PEOPLE OF THE STATE OF 15 [Doc. No. 2] CALIFORNIA,

16 Defendants. GRANTING PLAINTIFF’S 17 MOTIONS TO AMEND;

18 [Doc. Nos. 6, 8] 19 DISMISSING COMPLAINT FOR 20 FAILING TO STATE A CLAIM 21 PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) AND 28 U.S.C. § 22 1915A(b) 23 24 Plaintiff William Dawes, currently incarcerated at the San Diego County Sheriff 25 Department’s Central Jail (“SDCJ”) in San Diego, California, and proceeding pro se, has 26 filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. See Compl., Doc. No. 1. 27 Plaintiff did not pay the fee required by 28 U.S.C. § 1914(a) when he filed his Complaint; 28 instead he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 1 § 1915(a) (Doc. No. 2). 2 I. Motion to Proceed IFP 3 All parties instituting any civil action, suit or proceeding in a district court of the 4 United States, except an application for writ of habeas corpus, must pay a filing fee of 5 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 6 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 7 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 8 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 9 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 10 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 11 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. 12 See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 13 2002). 14 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 15 “certified copy of the trust fund account statement (or institutional equivalent) for ... the 16 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 17 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 18 trust account statement, the Court assesses an initial payment of 20% of (a) the average 19 monthly deposits in the account for the past six months, or (b) the average monthly 20 balance in the account for the past six months, whichever is greater, unless the prisoner 21 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 22 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 23 preceding month’s income, in any month in which his account exceeds $10, and forwards 24

25 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 26 fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court 27 Misc. Fee Schedule, § 14 (eff. June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed IFP. Id. 28 1 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). 2 In support of his IFP Motion, Plaintiff has submitted a Prison Certificate signed by 3 a Sheriff’s Detentions Lieutenant, together with a certified copy of his San Diego 4 Sheriff’s Department Statement Report showing his trust account activity at the time of 5 filing. See Doc. No. 2 at 5-6; see also 28 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; 6 Andrews, 398 F.3d at 1119. These statements show that Plaintiff carried an average 7 monthly balance of $69.93, and had $115.00 in average monthly deposits to his account 8 over the 6-month period immediately preceding the filing of his Complaint. He had an 9 available balance of $459.93 at the time of filing. See Doc. No. 5 at 6. 10 Based on this accounting, the Court GRANTS Plaintiff’s Motion to Proceed IFP 11 and assesses his initial partial filing fee to be $23.00 pursuant to 28 U.S.C. § 1915(b)(1). 12 The remaining balance of the $350 total fee owed in this case must be collected by the 13 agency having custody of the prisoner and forwarded to the Clerk of the Court pursuant 14 to 28 U.S.C. § 1915(b)(2). 15 II. Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A 16 A. Standard of Review 17 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 18 answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 19 statutes, the Court must review and sua sponte dismiss an IFP complaint, and any 20 complaint filed by a prisoner seeking redress from a governmental entity, or officer or 21 employee of a governmental entity, which is frivolous, malicious, fails to state a claim, or 22 seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 23 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. 24 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The 25 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need 26 not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th 27 Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 28 2012)). 1 All complaints must contain “a short and plain statement of the claim showing that 2 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 3 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by 4 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 5 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Determining 6 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 7 requires the reviewing court to draw on its judicial experience and common sense.” Id. 8 The “mere possibility of misconduct” falls short of meeting this plausibility standard. 9 Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 10 “The standard for determining whether a plaintiff has failed to state a claim upon 11 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 12 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 13 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 14 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 15 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 16 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 17 as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 18 (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 19 “When there are well-pleaded factual allegations, a court should assume their 20 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 21 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 22 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 23 allegations of material fact and must construe those facts in the light most favorable to 24 the plaintiff.”). However, while the court “ha[s] an obligation where the petitioner is pro 25 se, particularly in civil rights cases, to construe the pleadings liberally and to afford the 26 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 27 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 28 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 1 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 2 Finally, the “[c]ourt[] must consider the complaint in its entirety,” including 3 “documents incorporated into the complaint by reference” to be part of the pleading when 4 determining whether the plaintiff has stated a claim upon which relief may be granted. 5 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Fed. R. Civ. P. 6 10(c) (“A copy of a written instrument that is an exhibit to a pleading for all purposes.”); 7 Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 8 B. Plaintiff’s Allegations and Rule 8 9 As an initial matter, the Court finds that Plaintiff’s Complaint fails to comply with 10 Federal Rule of Civil Procedure 8. Rule 8 provides that in order to state a claim for relief 11 in a pleading it must contain “a short and plain statement of the grounds for the court’s 12 jurisdiction” and “a short and plain statement of the claim showing that the pleader is 13 entitled to relief.” Fed. R. Civ. P. 8(a)(1) & (2); see McHenry v. Renne, 84 F.3d 1172, 14 1178–80 (9th Cir. 1996) (upholding Rule 8(a) dismissal of complaint that was 15 “argumentative, prolix, replete with redundancy, and largely irrelevant”); Cafasso, 16 United States ex rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1059 (9th 17 Cir. 2011) (citing cases upholding Rule 8 dismissals where pleadings were “verbose,” 18 “confusing,” “distracting, ambiguous, and unintelligible,” “highly repetitious,” and 19 comprised of “incomprehensible rambling,” while noting that “[o]ur district courts are 20 busy enough without having to penetrate a tome approaching the magnitude of War and 21 Peace to discern a plaintiff’s claims and allegations.”). 22 Plaintiff is also admonished that he must comply with Local Rule 8.2 which 23 requires, in part, that “[c]omplaints by prisoners under the Civil Rights Act, 42 U.S.C. 24 § 1983, must be legibly written or typewritten on forms supplied by the court” and 25 “[a]dditional pages not to exceed fifteen (15) in number may be included with the court 26 approved form complaint, provided the form is completely filled ion to the extent 27 applicable.” SD CivLR 8.2(a). Here, Plaintiff has filed a forty three (43) page Complaint 28 which well exceeds the number of pages permitted by the local rule. 1 Plaintiff also refers to a number of claims but does not allege any facts to form the 2 basis of the claims and often does not actually name how any of the named Defendants 3 were responsible for the alleged violations. To the extent that the Court is able to 4 determine the nature of some of the claims, they will be addressed below. 5 C. 42 U.S.C. § 1983 6 “Section 1983 creates a private right of action against individuals who, acting 7 under color of state law, violate federal constitutional or statutory rights.” Devereaux v. 8 Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 9 substantive rights, but merely provides a method for vindicating federal rights elsewhere 10 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks 11 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) 12 deprivation of a right secured by the Constitution and laws of the United States, and (2) 13 that the deprivation was committed by a person acting under color of state law.” Tsao v. 14 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 15 D. Property claims 16 Plaintiff alleges that his due process rights were violated in January of 2016 when 17 he was previously housed at the Richard J. Donovan Correctional Facility (“RJD”). See 18 Compl. at 12. Specifically, it appears that he is alleged an RJD correctional officer and 19 the Warden for RJD had his “property destroyed.” Id. 20 Ordinarily, due process of law requires notice and an opportunity for some kind of 21 hearing prior to the deprivation of a significant property interest. Sinaloa Lake Owners 22 Ass’n v. City of Simi Valley, 882 F.2d 1398, 1405 (9th Cir. 1989). Neither the negligent 23 nor intentional deprivation of property states a due process claim under section 1983 if 24 the deprivation was random and unauthorized, however. Parratt v. Taylor, 451 U.S. 527, 25 535-44 (1981) (state employee negligently lost prisoner’s hobby kit), overruled in part on 26 other grounds, Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Hudson v. Palmer, 468 27 U.S. 517, 533 (1984) (intentional destruction of inmate’s property). The availability of 28 an adequate state post-deprivation remedy, e.g. a state tort action, precludes relief 1 because it provides sufficient procedural due process. See Zinermon v. Burch, 494 U.S. 2 113, 128 (1990) (where state cannot foresee, and therefore provide meaningful hearing 3 prior to the deprivation, a statutory provision for post-deprivation hearing or a state 4 common law tort remedy for erroneous deprivation satisfies due process); King v. 5 Massarweh, 782 F.2d 825, 826 (9th Cir. 1986) (same). The Ninth Circuit has long 6 recognized that California law provides such an adequate post-deprivation remedy. 7 Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (citing CAL. GOV’T CODE §§ 810- 8 895). 9 Deprivations of property resulting from negligence, or “mere lack of due care” do 10 not deny due process at all, and must be redressed through a state court damages action. 11 See Daniels, 474 U.S. at 328 (“[T]he Due Process Clause is simply not implicated by a 12 negligent act of an official causing unintended loss of or injury to life, liberty, or 13 property.”); id. at 330 (“‘To hold that this kind of loss is a deprivation of property within 14 the meaning of the Fourteenth Amendment seems not only to trivialize, but grossly to 15 distort the meaning and intent of the Constitution.’” (quoting Parratt, 451 U.S. at 545 16 (Stewart, J., concurring)). In fact, the Supreme Court has explicitly warned against 17 turning the Fourteenth Amendment and § 1983 into a “font of tort law to be 18 superimposed upon whatever systems may already be administered by the States.” See 19 Paul v. Davis, 424 U.S. 693, 701 (1976). 20 Thus, because Plaintiff claims Defendants deprived him of personal property, any 21 remedy he may have lies in state court and his federal claim must be dismissed for failing 22 to state a claim upon which § 1983 relief may be granted. 28 U.S.C. § 1915(e)(2); Lopez, 23 203 F.3d at 1126-27. 24 E. Public Defender 25 To the extent that Plaintiff names attorneys who have been appointed to represent 26 him, see Compl. at 13, 15-16, he fails to state a claim upon which § 1983 relief can be 27 granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1). “[A] public 28 defender does not act under color of state law when performing a lawyer’s traditional 1 functions as counsel to a defendant in a criminal proceeding.” Polk County v. Dodson, 2 454 U.S. 312, 325 (1981); Miranda v. Clark County, Nevada, 319 F.3d 465, 468 (9th Cir. 3 2003) (“[The public defender] was, no doubt, paid by government funds and hired by a 4 government agency. Nevertheless, [her] function was to represent [her] client, not the 5 interests of the state or county.”); Garnier v. Clarke, 332 Fed. App’x 416 (9th Cir. 2009) 6 (affirming district court’s sua sponte dismissal of prisoner’s § 1983 claims against 7 appointed counsel). 8 Thus, all claims against Defendants Roustan, Grossman, Manqarin and Jayakumar 9 are dismissed from this action for failing to state a claim upon which relief may be 10 granted. 11 F. Heck Bar 12 There are two methods for state prisoners to raise complaints related to their 13 imprisonment in federal court. See Muhammad v. Close, 540 U.S. 749, 750 (2004) 14 (“Federal law opens two main avenues to relief on complaints related to 15 imprisonment....”) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). In general, 16 claims of constitutional violations related to the “circumstances” of a prisoner’s 17 confinement must be brought in a civil rights action under Section 1983, see id., while 18 constitutional challenges to the validity or duration of a prisoner’s confinement must be 19 raised in a petition for federal habeas corpus under 28 U.S.C. § 2254, or through 20 appropriate state relief. Wilkinson v. Dotson, 544 U.S. 74, 78-79 (2005) (citations and 21 internal quotation marks omitted); Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) 22 (en banc) (“The Court has long held that habeas is the exclusive vehicle for claims 23 brought by state prisoners that fall within the core of habeas, and such claims may not be 24 brought in a § 1983 action.”) (citing Dotson, 544 U.S. at 81-82). 25 Thus, to the extent Plaintiff seeks damages based on claims that he has been 26 unlawfully convicted, sentenced, and/or incarcerated due to his public defenders’ failing 27 to “establish a defense,” violating his “rights to a speedy trial,” and “working as a 28 prosecutor,” see Compl. at 13, 15-16, he may not pursue those claims in a civil rights 1 action pursuant to 42 U.S.C. § 1983, without first showing his conviction has already 2 been invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). 3 In Heck, the Supreme Court held: 4 in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions 5 whose unlawfulness would render a conviction or sentence 6 invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by 7 executive order, declared invalid by a state tribunal authorized to 8 make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A 9 claim for damages bearing that relationship to a conviction or 10 sentence that has not been so invalidated is not cognizable under § 1983. 11 12 Id. at 486-87; Washington v. Los Angeles County Sheriff’s Dep’t, 833 F.3d 1048, 1054-55 13 (9th Cir. 2016). 14 “Suits challenging the validity of the prisoner’s continued incarceration lie within 15 ‘the heart of habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state 16 prisoner who is making a constitutional challenge to the conditions of his prison life, but 17 not to the fact or length of his custody.’” Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 18 2003) (emphasis added), quoting Preiser, 411 U.S. at 498-99 (holding that a writ of 19 habeas corpus is “explicitly and historically designed” to provide a state prisoner with the 20 “exclusive” means to “attack the validity of his confinement” in federal court). 21 Because Plaintiff seeks damages based on alleged violations of his constitutional 22 rights during his criminal proceedings, he may not proceed pursuant to § 1983, unless he 23 alleges and can show that conviction has already been invalidated. Heck, 512 U.S. at 24 486-87; Ramirez, 334 F.3d at 855-56 (“Absent such a showing, ‘[e]ven a prisoner who 25 has fully exhausted available state remedies has no cause of action under § 1983.’”), 26 quoting Heck, 512 U.S. at 489. This is because an award of damages in his favor would 27 necessarily imply the invalidity of his conviction and consequently affect the duration of 28 his confinement. See Heck, 512 U.S. at 487; see also Pattillo v. Lombardo, No. 2:17-CV- 1 01849-JAD-VCF, 2017 WL 3622778, at *4 (D. Nev. Aug. 23, 2017) (“When a prisoner 2 challenges the legality or duration of his custody, raises a constitutional challenge which 3 could entitle him to an earlier release … or seeks damages for purported deficiencies in 4 his state court criminal case, which effected a conviction or lengthier sentence, his sole 5 federal remedy is the writ of habeas corpus.”); Toney v. Ruiz, No. 3:10-CV-00405 BTM 6 (PCL), 2010 WL 2383787, at *2 (S.D. Cal. June 9, 2010) (noting that “ineffective 7 assistance of counsel claims ‘necessarily imply the invalidity’ of criminal proceedings.”) 8 (citing Heck, 512 U.S. at 487; Strickland v. Washington, 466 U.S. 668, 688 (1984) (to 9 succeed on ineffective assistance claim petitioner must show that counsel’s performance 10 fell below objective standard of reasonableness and that but for counsel’s errors the result 11 of the trial would have been different)). 12 Because Plaintiff does not allege to have already invalidated his conviction by way 13 of direct appeal, executive order, or through the issuance of either a state or federal court 14 writ of habeas corpus, Heck, 512 U.S. at 487, his claims must be dismissed for failing to 15 state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. 16 § 1915(e)(2)(B) and § 1915A(b). 17 G. Eighth Amendment claims 18 Plaintiff also claims his Eighth Amendment rights were violated while housed at 19 RJD alleging that RJD does not have an adequate ventilation system and the temperatures 20 in the cells can “reach over 90 [degrees].” Compl. at 17. 21 The treatment a prisoner receives in prison and the conditions under which the 22 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits 23 cruel and unusual punishment. Farmer v. Brennan, 511 U.S. 825, 832 (1994). The 24 Eighth Amendment “embodies ‘broad and idealistic concepts of dignity, civilized 25 standards, humanity, and decency ...,’ against which we must evaluate penal measures.” 26 Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Jackson v. Bishop, 404 F.2d 571, 27 579 (8th Cir. 1968)). Although the Eighth Amendment does not mandate that prisons be 28 comfortable, see Rhodes v. Chapman, 452 U.S. 337, 349 (1981), or that they provide 1 every amenity a prisoner might find desirable, see Hoptowit v. Ray, 682 F.2d 1237, 1246 2 (9th Cir. 1982), it also does not permit inhumane prison conditions. See Farmer, 511 3 U.S. at 832. 4 An inmate complaining of conditions of confinement must allege facts that, if true, 5 would satisfy both prongs of a bifurcated test. First, Plaintiff must allege that, 6 objectively, the deprivation alleged is “sufficiently serious” such that it results in the 7 denial of “the minimal civilized measure of life’s necessities.” Id. at 834. “Prison 8 officials have a duty to ensure that prisoners are provided adequate shelter, food, 9 clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 10 731 (9th Cir. 2000). “The circumstances, nature, and duration of a deprivation of these 11 necessities must be considered in determining whether a constitutional violation has 12 occurred. ‘The more basic the need, the shorter the time it can be withheld.’” Id. (citing 13 Ray, 682 F.2d at 1259). 14 Second, from a subjective point of view, Plaintiff must allege that Defendants 15 acted with a sufficiently culpable state of mind, i.e., with “deliberate indifference.” 16 Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). “A prison official cannot be found liable 17 under the Eighth Amendment for denying an inmate humane conditions of confinement 18 unless the official knows of and disregards an excessive risk to inmate health or safety; 19 the official must both be aware of facts from which the inference could be drawn that a 20 substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 21 511 U.S. at 837. 22 Based on allegations made by Plaintiff, the Court finds that Plaintiff has alleged 23 facts sufficient to satisfy the objective prong of his “inhumane prison conditions” claim. 24 See id. at 838. Ventilation is a fundamental attribute of “shelter” and “sanitation,” both 25 of which are basic Eighth Amendment concerns. See Toussaint v. McCarthy, 597 F. 26 Supp. 1388, 1409 & n.39 (N.D. Cal. 1984). “Inadequate ‘ventilation and air flow’ 27 violates the Eighth Amendment if it ‘undermines the health of inmates and the sanitation 28 of the penitentiary.’” Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996), amended, 135 1 F.3d 1318 (9th Cir. 1998) (quoting Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 2 1985)). 3 However, Plaintiff has failed to allege facts sufficient to plausibly show that any of 4 the named Defendants acted with the “deliberate indifference” required to support the 5 subjective component of his Eighth Amendment claim. Plaintiff’s only claim is that 6 Defendant Buenrostros violated his rights “by the taking of [Plaintiff’s] fan.” See Compl. 7 at 17. But without more, these conclusory allegations fail to provide the factual content 8 necessary to allow the Court to draw a reasonable inference that each Defendant through 9 his or her “own individual actions, has violated the Constitution.” Iqbal, 556 U.S. 676. 10 Instead, Plaintiff must offer some “further factual enhancement” to plausibly suggest 11 each of these Defendants were actually “aware of facts from which the inference could be 12 drawn that a substantial risk of serious harm exist[ed],” and that each of them “also 13 dr[e]w th[at] inference.” Farmer, 511 U.S. at 837; Iqbal, 556 U.S. at 678. A pleading 14 like Plaintiff’s “that offers ‘labels and conclusions’ or [only] ‘a formulaic recitation of the 15 elements of a cause of action will not do.’” Id. (citing Bell Atlantic Corp., 550 U.S. at 16 555). 17 H. Misjoinder of claims 18 Plaintiff also alleges claims against various attorneys who have represented him 19 during different stages of his criminal proceedings, correctional officers at RJD, medical 20 personnel at California Men’s Colony (“CMC”), as well as claims against the Warden for 21 the California State Prison – Los Angeles County (“CSP-LAC”). 22 Federal Rule of Civil Procedure 20 states that Defendants may be joined in one 23 action if “any right to relief is asserted against them jointly, severally, or in the alternative 24 with respect to or arising out of the same transaction, occurrence, or series of transactions 25 or occurrences” and “any question of law or fact common to all defendants will arise in 26 the action.” Fed. R. Civ. P. 20(a)(2)(A-B). 27 Here, Plaintiff’s allegations against the variety of Defendants are not a set of 28 “transactions or occurrences” which contain a common question of law or facts. If the 1 requirements for permissive joinder under Rule 20 are not satisfied, courts may look to 2 Rule 21. Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997). Under Rule 21, where 3 a court finds misjoinder, “on its own” it may “drop a party” or “sever any claim against a 4 party.” Fed. R. Civ. P. 21. Therefore, if Plaintiff chooses to amend his pleading and 5 include all of these Defendants whose claims are entirely unrelated to each other, these 6 claims may be severed from this action. 7 I. Leave to Amend 8 Accordingly, the Court finds that Plaintiff’s Complaint, considered together with 9 the exhibits he has attached, fails to state a plausible claim against any named Defendant, 10 and that therefore, it is subject to sua sponte dismissal in its entirety pursuant to 28 U.S.C. 11 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 12 F.3d at 1004. 13 Because he is proceeding pro se, however, the Court having now provided him 14 with “notice of the deficiencies in his complaint,” will also grant Plaintiff an opportunity 15 to amend. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. 16 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). 17 III. Conclusion and Orders 18 For the reasons explained, the Court: 19 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 20 (Doc. No. 2). 21 2. DIRECTS the Watch Commander of SDCJ, or his designee, to collect from 22 Plaintiff’s inmate trust account the $350 filing fee owed in this case by garnishing 23 monthly payments in an amount equal to twenty percent (20%) of the preceding month’s 24 income and forwarding those payments to the Clerk of the Court each time the amount in 25 the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST 26 BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 28 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch 1 || Commander, San Diego Central Jail, 1173 Front Street, San Diego, California 92101. 2 4. DISMISSES Plaintiff's Complaint for failing to state a claim upon which 3 ||relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and 4 ||GRANTS Plaintiff's Motions to Amend (Doc. Nos. 6, 8.) Plaintiff is granted forty-five 5 days leave from the date of this Order in which to file an Amended Complaint which 6 ||cures all the deficiencies of pleading noted. Plaintiff's Amended Complaint must be 7 ||complete by itself without reference to his original pleading. Defendants not named and 8 || any claim not re-alleged in his Amended Complaint will be considered waived. See S.D. 9 ||Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 10 || 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. 11 || Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with 12 || leave to amend which are not re-alleged in an amended pleading may be “considered 13 || waived if not repled.”). 14 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 15 |} will enter a final Order dismissing this civil action based both on Plaintiff’s failure to 16 || state a claim upon which relief can be granted pursuant to 28 U.S.C. $$ 1915(e)(2)(B) 17 1915A(b), and his failure to prosecute in compliance with a court order requiring 18 ||amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff 19 || does not take advantage of the opportunity to fix his complaint, a district court may 20 || convert the dismissal of the complaint into dismissal of the entire action.”). 21 5. The Clerk of Court is directed to mail Plaintiff a court approved civil rights 22 ||complaint form. 24 || DATE: December 20, 2019 a VM etd al To — [ Ls 25 HON. MICHAEL M. ANELLO United States District Judge 26 27 28 14