1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 KEVIN LEE MCCULLOM, Case No. 19-06003 BLF (PR) 11 ORDER OF DISMISSAL WITH 12 Plaintiff, LEAVE TO AMEND 13 v.
14 ALAMEDA COUNTY SHERIFF’S 15 DEPT., et al.,
16 Defendants. 17 18 Plaintiff, a state prisoner proceeding pro se, filed documents which were construed 19 as an attempt to open a civil rights action pursuant to 42 U.S.C. § 1983. (Docket No. 1.) 20 In response to a Clerk’s notice advising him that the complaint was not submitted on the 21 proper form, (Docket No. 3), Plaintiff filed a complaint using the court’s form along with 22 attachments. (Docket No. 5.) Before the Court had an opportunity to screen the 23 complaint, Plaintiff filed an amended complaint on November 4, 2019, titled “amended 24 class action 42 U.S.C. 1983 complaint [sic].” (Docket No. 8 at 1.) The Court finds that 25 the amended complaint is the operative complaint in this matter. See Fed. R. Civ. P. 26 15(a)(1). Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in a 27 separate order. 1 DISCUSSION 2 A. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 14 B. Class Action 15 As a preliminary matter, the Court addresses Plaintiff’s assertion that this is a “class 16 action” under § 1983. (Docket No. 8 at 1.) Plaintiff includes the names of several other 17 plaintiffs who appear to be similarly situated prisoners. (Id. at 3.) The Court will construe 18 this assertion as a request for class certification pursuant to Fed. R. Civ. P. 23. 19 The prerequisites to maintenance of a class action are that (1) the class is so numerous that joinder of all members is impracticable, (2) there are common questions of 20 law and fact, (3) the representative party’s claims or defenses are typical of the class 21 claims or defenses, and (4) the representative party will fairly and adequately protect the 22 class interests. See Fed. R. Civ. P. 23(a). Pro se prisoner plaintiffs are not adequate class 23 representatives able to fairly represent and adequately protect the interests of the class. See 24 Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975); see also Russell v. United 25 States, 308 F.2d 78, 79 (9th Cir. 1962) (‘a litigant appearing in propria persona has no 26 1 and therefore cannot adequately represent the intended class. Accordingly, his request for 2 class certification is DENIED. See, e.g., Griffin v. Smith, 493 F. Supp. 129, 131 3 (W.D.N.Y. 1980) (denying class certification on basis that pro se prisoner cannot 4 adequately represent class). The other “plaintiffs” listed on the amended complaint shall 5 be removed from this action. (Docket No. 8 at 1, 3.) If they desire to pursue any claims on their own, they must do so by each filing separate actions. 6 C. Plaintiff’s Claims 7 According to the first few pages of the amended complaint, Plaintiff is suing 8 employees of the Alameda County Sheriff’s Department, the Sheriff of Contra Costa 9 County, officers at the Santa Rita Jail Facility in Dublin, employees at the Napa State 10 Hospital, and several other individuals located at different addresses. (Am. Compl. at 3, 11 4.) Plaintiff’s allegations include the following: (1) claims of false arrest, false 12 imprisonment, issuance of an improper arrest warrant, and malicious prosecution against 13 the Alameda County Sheriff’s Department, Santa Rita Jail officers, and the Oakland Police 14 Department from whom Plaintiff seeks damages, (id. at 5); (2) inadequate medical care for 15 HIV at the Santa Rita Jail, (id. at 6, 7); and (3) ineffective assistance of counsel from his 16 public defender, (id. at 7). With respect to the medical claim and the claim involving 17 counsel, Plaintiff wants “Federal monitors” to be placed inside County offices, including 18 the Alameda County District Attorney’s Office, and in superior court buildings throughout 19 Alameda County. (Id. at 6, 7.) 20 The amended complaint is problematic for several reasons. First of all, the 21 amended complaint contains different claims against different defendants which do not 22 appear to be related. “A party asserting a claim, counterclaim, crossclaim, or third-party 23 claim may join, as independent or alternative claims, as many claims as it has against an 24 opposing party.” Fed. R. Civ. P. 18(a). Accordingly, “multiple claims against a single 25 party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim 26 1 claims against different defendants belong in different suits,” not only to prevent the sort 2 of “morass” that a multi-claim, multi-defendant suit can produce, “but also to ensure that 3 prisoners pay the required filing fees – for the Prison Litigation Reform Act limits to 3 the 4 number of frivolous suits or appeals that any prisoner may file without prepayment of 5 required fees.” Id. (citing 28 U.S.C. § 1915(g)). 6 Here, it is clear the various claims raised against different defendants throughout 7 Alameda County and Contra Costa County are not all related to each other and do not all 8 arise out of the same transaction, occurrence, or series of transactions or occurrences. Fed. 9 R. Civ. P. 20(a)(2). Specifically, the claims attacking the lawfulness of his conviction are 10 not related to the claims regarding conditions of confinement, i.e., his medical treatment. 11 “A buckshot complaint that would be rejected if filed by a free person – say, a suit 12 complaining that A defrauded plaintiff, B defamed him, C punched him, D failed to pay a 13 debt, and E infringed his copyright, all in different transactions – should be rejected if filed 14 by a prisoner.” George v. Smith, 507 F.3d 605, 607 (7th Cir.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 KEVIN LEE MCCULLOM, Case No. 19-06003 BLF (PR) 11 ORDER OF DISMISSAL WITH 12 Plaintiff, LEAVE TO AMEND 13 v.
14 ALAMEDA COUNTY SHERIFF’S 15 DEPT., et al.,
16 Defendants. 17 18 Plaintiff, a state prisoner proceeding pro se, filed documents which were construed 19 as an attempt to open a civil rights action pursuant to 42 U.S.C. § 1983. (Docket No. 1.) 20 In response to a Clerk’s notice advising him that the complaint was not submitted on the 21 proper form, (Docket No. 3), Plaintiff filed a complaint using the court’s form along with 22 attachments. (Docket No. 5.) Before the Court had an opportunity to screen the 23 complaint, Plaintiff filed an amended complaint on November 4, 2019, titled “amended 24 class action 42 U.S.C. 1983 complaint [sic].” (Docket No. 8 at 1.) The Court finds that 25 the amended complaint is the operative complaint in this matter. See Fed. R. Civ. P. 26 15(a)(1). Plaintiff’s motion for leave to proceed in forma pauperis will be addressed in a 27 separate order. 1 DISCUSSION 2 A. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 10 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 14 B. Class Action 15 As a preliminary matter, the Court addresses Plaintiff’s assertion that this is a “class 16 action” under § 1983. (Docket No. 8 at 1.) Plaintiff includes the names of several other 17 plaintiffs who appear to be similarly situated prisoners. (Id. at 3.) The Court will construe 18 this assertion as a request for class certification pursuant to Fed. R. Civ. P. 23. 19 The prerequisites to maintenance of a class action are that (1) the class is so numerous that joinder of all members is impracticable, (2) there are common questions of 20 law and fact, (3) the representative party’s claims or defenses are typical of the class 21 claims or defenses, and (4) the representative party will fairly and adequately protect the 22 class interests. See Fed. R. Civ. P. 23(a). Pro se prisoner plaintiffs are not adequate class 23 representatives able to fairly represent and adequately protect the interests of the class. See 24 Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975); see also Russell v. United 25 States, 308 F.2d 78, 79 (9th Cir. 1962) (‘a litigant appearing in propria persona has no 26 1 and therefore cannot adequately represent the intended class. Accordingly, his request for 2 class certification is DENIED. See, e.g., Griffin v. Smith, 493 F. Supp. 129, 131 3 (W.D.N.Y. 1980) (denying class certification on basis that pro se prisoner cannot 4 adequately represent class). The other “plaintiffs” listed on the amended complaint shall 5 be removed from this action. (Docket No. 8 at 1, 3.) If they desire to pursue any claims on their own, they must do so by each filing separate actions. 6 C. Plaintiff’s Claims 7 According to the first few pages of the amended complaint, Plaintiff is suing 8 employees of the Alameda County Sheriff’s Department, the Sheriff of Contra Costa 9 County, officers at the Santa Rita Jail Facility in Dublin, employees at the Napa State 10 Hospital, and several other individuals located at different addresses. (Am. Compl. at 3, 11 4.) Plaintiff’s allegations include the following: (1) claims of false arrest, false 12 imprisonment, issuance of an improper arrest warrant, and malicious prosecution against 13 the Alameda County Sheriff’s Department, Santa Rita Jail officers, and the Oakland Police 14 Department from whom Plaintiff seeks damages, (id. at 5); (2) inadequate medical care for 15 HIV at the Santa Rita Jail, (id. at 6, 7); and (3) ineffective assistance of counsel from his 16 public defender, (id. at 7). With respect to the medical claim and the claim involving 17 counsel, Plaintiff wants “Federal monitors” to be placed inside County offices, including 18 the Alameda County District Attorney’s Office, and in superior court buildings throughout 19 Alameda County. (Id. at 6, 7.) 20 The amended complaint is problematic for several reasons. First of all, the 21 amended complaint contains different claims against different defendants which do not 22 appear to be related. “A party asserting a claim, counterclaim, crossclaim, or third-party 23 claim may join, as independent or alternative claims, as many claims as it has against an 24 opposing party.” Fed. R. Civ. P. 18(a). Accordingly, “multiple claims against a single 25 party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim 26 1 claims against different defendants belong in different suits,” not only to prevent the sort 2 of “morass” that a multi-claim, multi-defendant suit can produce, “but also to ensure that 3 prisoners pay the required filing fees – for the Prison Litigation Reform Act limits to 3 the 4 number of frivolous suits or appeals that any prisoner may file without prepayment of 5 required fees.” Id. (citing 28 U.S.C. § 1915(g)). 6 Here, it is clear the various claims raised against different defendants throughout 7 Alameda County and Contra Costa County are not all related to each other and do not all 8 arise out of the same transaction, occurrence, or series of transactions or occurrences. Fed. 9 R. Civ. P. 20(a)(2). Specifically, the claims attacking the lawfulness of his conviction are 10 not related to the claims regarding conditions of confinement, i.e., his medical treatment. 11 “A buckshot complaint that would be rejected if filed by a free person – say, a suit 12 complaining that A defrauded plaintiff, B defamed him, C punched him, D failed to pay a 13 debt, and E infringed his copyright, all in different transactions – should be rejected if filed 14 by a prisoner.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (noting that, in 15 prisoner complaint seeking to join 24 defendants and approximately 50 distinct claims, 16 prisoner made no effort to show that 24 defendants he named had participated in the same 17 transaction or series of transactions or that a question of fact is common to all defendants). 18 Accordingly, the Court finds that the unrelated claims against unrelated Defendants are 19 improperly joined in this single action. In the interest of justice, Plaintiff shall be granted 20 leave to file another amended complaint containing only related claims against the 21 appropriate Defendants. 22 Secondly, Plaintiff seeks damages based on allegedly unlawful criminal 23 proceedings against him in Alameda County. If an action for damages is based on an 24 allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions 25 whose unlawfulness would render a conviction or sentence invalid, a 42 U.S.C. § 1983 26 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, 1 determination, or called into question by a federal court's issuance of a writ of habeas 2 corpus. Heck v. Humphrey, 512 U.S. 477, 486-487 (1994). A claim for damages bearing 3 that relationship to a conviction or sentence that has not been so invalidated is not 4 cognizable under § 1983. Id. at 487. 5 In summary, Plaintiff may only pursue claims for damages based on 6 unconstitutional conviction or imprisonment in this action if he can show that the unlawful 7 conviction has been invalidated and therefore not barred by Heck. Unless he can do so, the 8 only claims he can pursue in this action are the claims regarding his medical treatment at 9 Santa Rita County Jail. However, if he can show that the unlawful conviction has been 10 invalidated, then he must choose to pursue in this action either the claims related to that 11 conviction or the claims regarding his medical treatment. Plaintiff may pursue any claims 12 he chooses to forego in this action, that are not Heck-barred, by filing them in a separate 13 action and paying the related filing fees. 14 Lastly, Plaintiff’s request for “Federal monitors” is not the type of relief that is 15 available through a § 1983 action. Available remedies include damages, see Borunda v. 16 Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988), injunctive relief, 18 U.S.C. §§ 17 3626(a)(1)(A), 3626(a)(2), and declaratory relief, see Eccles v. Peoples Bank of Lakewood 18 Village, Cal., 333 U.S. 426, 431 (1948). 19 20 CONCLUSION 21 For the reasons state above, the Court orders as follows: 22 1. Plaintiff’s request for class certification is DENIED. This matter shall 23 proceed with Mr. McCullom as the sole plaintiff in this action. All other individuals 24 named as plaintiffs, (Docket No. 8 at 1, 3), shall be terminated from this action. 25 2. The amended complaint is DISMISSED with leave to amend. Within 26 twenty-eight (28) days from the date this order is filed, Plaintiff shall file a second 1 || Procedure. The second amended complaint must include the caption and civil case number 2 used in this order, Case No. C 19-06003 BLF (PR), and the words “SECOND AMENDED 3 || COMPLAINT” on the first page. If using the court form complaint, Plaintiff must answer 4 all the questions on the form in order for the action to proceed. 5 The second amended complaint supersedes the original and amended complaints, 6 || which are treated thereafter as non-existent. Ramirez v. Cty. Of San Bernardino, 806 F.3d 7 || 1002, 1008 (9th Cir. 2015). Consequently, claims not included in the second amended 8 || complaint are no longer claims and defendants not named in the second amended 9 || complaint are no longer defendants. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th 10 || Cir.1992). 11 Failure to respond in accordance with this order in the time provided will 2 result in the dismissal of this action without prejudice and without further notice to 13 || Plaintiff. S 14 The Clerk shall include two copies of the court’s complaint with a copy of this 3 15 || order to Plaintiff. 16 IT IS SO ORDERED. 5 Dated: January 27, 2020 ko hy hh h concer 8 BETH LABSON FREEMAN United States District Judge 19 20 21 22 23 24 25 |] □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ da 26 27