(PC) Cox v. Kernan

• Court: District Court, E.D. California
• Decided: December 16, 2019
• Docket: 2:19-cv-01637
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERNEST L. COX, No. 2:19-cv-1637 DB P 12 Plaintiff, 13 v. ORDER 14 SCOTT KERNAN, et al., 15 Defendants. 16 17 Plaintiff is a state inmate proceeding pro se with a civil rights action pursuant to 42 U.S.C. 18 § 1983. Plaintiff claims his rights were violated in connection with a 2014 rules violation for 19 allegedly overfamiliar contact with a correctional officer. Presently before the court is plaintiff’s 20 motion to proceed in forma pauperis (ECF No. 4) and his complaint for screening (ECF No. 1). 21 For the reasons set forth below the court will grant the motion to proceed in forma pauperis and 22 dismiss the complaint with leave to amend. 23 IN FORMA PAUPERIS 24 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 25 1915(a). (ECF No. 4.) Accordingly, the request to proceed in forma pauperis will be granted. 26 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 27 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 28 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 1 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 2 forward it to the Clerk of the court. Thereafter, plaintiff will be obligated for monthly payments 3 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 4 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 5 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 6 1915(b)(2). 7 SCREENING 8 I. Legal Standards 9 The court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 11 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 12 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 13 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 14 U.S.C. § 1915A(b)(1) & (2). 15 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 16 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 17 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 18 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 19 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 20 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 21 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 22 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 23 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 24 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 25 However, in order to survive dismissal for failure to state a claim a complaint must 26 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 27 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 28 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 1 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 2 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 3 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 4 The Civil Rights Act under which this action was filed provides as follows: 5 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 6 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 7 or other proper proceeding for redress. 8 42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at 9 389. The statute requires that there be an actual connection or link between the 10 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 11 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 12 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 13 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 14 omits to perform an act which he is legally required to do that causes the deprivation of which 15 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 16 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 17 their employees under a theory of respondeat superior and, therefore, when a named defendant 18 holds a supervisorial position, the causal link between him and the claimed constitutional 19 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 20 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 21 concerning the involvement of official personnel in civil rights violations are not sufficient. See 22 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 23 II. Allegations in the Complaint 24 Plaintiff claims the events giving rise to his claims occurred while he was incarcerated at 25 Mule Creek State Prison (“MCSP”). (ECF No. 1 at 3.) Plaintiff names as defendants in this 26 action: (1) Scott Kernan, former Secretary of the California Department of corrections and 27 Rehabilitation (“CDCR”); (2) Joe Lizarraga, Warden at MCSP; (3) L. Olivas, Correctional 28 Captain; and (4) R. Grimes, Correctional Officer. (ECF No. 1 at 3.) 1 Plaintiff claims that he would frequently talk to correctional officer Grimes, who 2 supervised him while he was working as a porter, or janitor. (ECF No. 1 at 4-5.) He states that 3 he and Grimes would typically speak while she was seated at the command station. He further 4 states that they discussed her personal life and she read plaintiff’s writings. Plaintiff states that 5 one day while they were talking, lieutenant Allen approached the command station and observed 6 their conversation. (ECF No. 1 at 6.) They stopped talking and Allen stated, “It’s too late, I saw 7 too much already.” (Id.) 8 When plaintiff approached Grimes at the command station the following day, she told him 9 she had been warned about talking to inmates at the command station. (ECF No. 1 at 7.) Grimes 10 also told plaintiff that “writing is good therapy.” (Id.) Plaintiff claims he took this statement to 11 mean that Grimes wanted plaintiff to reduce their conversations to writing. 12 On April 9, 2014, plaintiff spoke to Grimes about rumors spread by other inmates relating 13 to Grimes. (Id.) Specifically, he told her an inmate named Angel stated Grimes was his girl, that 14 she was seen attempting to enter the staff rest room with Angel, as well as other information. 15 Plaintiff wrote down the information and told Grimes “that the letter was not a good letter but that 16 she will want to know the information.” (Id.) Grimes told plaintiff the letter would remain 17 confidential and that she wanted plaintiff to give her the letter. (Id.) 18 Plaintiff alleges that Grimes took the letter home with her when she left work that 19 evening. Plaintiff alleges that when Grimes returned to work after her regularly scheduled days 20 off, on April 12, 2014 she turned in the letter plaintiff had given her. (Id. at 9.) Plaintiff alleges 21 that Allen and captain Olivas questioned Grimes about the allegation in the letter that she flirted 22 and conversed with inmates in an overly familiar manner. (Id. at 10.) He further alleges that 23 Grimes blamed plaintiff and stated that her conduct had not given him any reason to believe that 24 it was okay to give her a letter. 25 Plaintiff was then questioned by Allen. Allen told plaintiff that prison staff, including 26 Olivas and Warden Lizarraga were concerned that plaintiff was trying to establish a relationship 27 with Grimes. Plaintiff states he was fired from his prison job, moved to a different housing unit, 28 and instructed to stay away and refrain from looking at Grimes. (Id.) 1 Plaintiff received a rules violation report. (Id. at 11.) Plaintiff challenges the accuracy 2 and the authenticity of the report. Plaintiff states a disciplinary hearing regarding the RVR took 3 place on April 19, 2014 with Allen presiding. Plaintiff alleges Allen stated that the witnesses 4 plaintiff wanted to call were irrelevant and denied plaintiff’s request to call Grimes as a witness. 5 (Id. at 11-12.) Plaintiff was ultimately found guilty; as a result, he lost thirty days of behavioral 6 credits and was confined to his quarters for ten days. (Id. at 12.) 7 III. Does Plaintiff State a Claim Under § 1983? 8 Plaintiff has alleged the following legal theories of relief: (1) the “RVR constitutes a false 9 report; (2) he was “entrapped into conversing with, and giving” Grimes the letter; (3) Grimes’ 10 conduct amounted to sexual harassment and infliction of emotional distress; (4) CDCR failed to 11 create written rules or instruct inmates regarding the proper reaction to overfamiliar staff 12 behavior; and (5) his due process rights were violated during the disciplinary hearing process. 13 The court will address each theory in turn below. 14 A. Violation of State Law and/or Prison Regulations 15 Plaintiff claims the RVR authored by Grimes was a false report in violation of Califorina 16 State law and CDCR regulations. (ECF No. 1 at 13.) Plaintiff alleges the RVR could not have 17 been authored on Monday April 10, 2014 because Grimes’ days off were Sundays and Mondays. 18 The body of the RVR states that plaintiff gave Grimes a letter on Sunday April 9, 2014. (Id. at 19 11.) However, the court notes that the calendar date of April 10, 2014 took place on a Thursday. 20 See Fed. R. Evid. 201 (court may take judicial notice of facts that are capable of accurate 21 determination by sources whose accuracy cannot reasonably be questioned); see also Horowitz v. 22 GC Services Ltd. Partnership, 2015 WL 1959377 at *3 (S.D. Cal. Apr. 28, 2015) (finding that a 23 “calendar date is not subject to reasonable dispute because the accuracy of a calendar date cannot 24 be reasonably questioned.”). Thus, it is entirely possible that the RVR was authored on April 10, 25 2014, which would have been a Thursday, and not on one of Grimes’ usual days off. 26 Regardless, the filing of a false rules violation report by a prison official against a prisoner 27 is not a per se violation of the prisoner’s constitutional rights. See Muhammad v. Rubia, No. 28 C08-3209 JSW PR, 2010 WL 1260425, at *3 (N.D. Cal. Mar. 29, 2010), aff’d 453 Fed. App’x 1 751 (9th Cir. 2011) (“[A] prisoner has no constitutionally guaranteed immunity from being 2 falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty 3 interest. As long as a prisoner is afforded procedural due process in the disciplinary hearing, 4 allegations of a fabricated charge fail to state a claim under § 1983.”) (internal citation omitted); 5 Harper v. Costa, No. CIVS07-2149 LKK DAD P, 2009 WL 1684599, at *2-3 (E.D. Cal. June 16, 6 2009), aff’d 393 Fed. App’x 488 (9th Cir. 2010) (“Although the Ninth Circuit has not directly 7 addressed this issue in a published opinion, district courts throughout California . . . have 8 determined that a prisoner’s allegation that prison officials issued a false disciplinary charge 9 against him fails to state a cognizable claim for relief under § 1983.”). 10 Plaintiff has further alleged that Grimes failed to turn in the letter immediately in violation 11 of prison regulations. (ECF No. 1 at 13.) However, violations of state prison rules and 12 regulations, without more, do not support any claims under § 1983. Ove v. Gwinn, 264 F.3d 817, 13 824 (9th Cir. 2001); Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997). Only 14 if the events complained of rise to the level of a federal statutory or constitutional violation may 15 plaintiff pursue them under § 1983. Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 16 2011); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 17 Accordingly, plaintiff’s allegations regarding the allegedly false report or Grimes’ 18 violation of prison rules and regulations fails to state a claim under § 1983. 19 B. Entrapment 20 Plaintiff claims he was entrapped into giving Grimes the letter and receiving a RVR for 21 doing so. (ECF No. 1 at 14.) However, entrapment is an affirmative defense to a crime and 22 cannot form the basis of a § 1983 claim. Snyder v. Ca Dep’t of Corr. And Rehab., No. CV 18- 23 1223 PSG (RAO), 2018 WL 6242167 at *6 (C.D. Cal. Nov. 9, 2018) (citing Mathew v. U.S., 485 24 U.S. 58, 62-63 (1988)). 25 C. Sexual Harassment 26 The Eighth Amendment prohibits cruel and unusual punishment of a person convicted of a 27 crime. U.S. Const. amend. VIII. “The Constitution [] ‘does not mandate comfortable prisons,’ 28 and only those deprivations denying ‘the minimal civilized measure of life’s necessities’ are 1 sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson v. Seiter, 501 2 U.S. 294, 298 (1991) (internal citations omitted) (quoting Rhodes v. Chapman, 452 U.S. 337, 3 347, 349). Whether a specific act constitutes cruel and unusual punishment is measured by “the 4 evolving standards of decency that mark the progress of a maturing society.” Rhodes, 452 U.S. at 5 346 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). In evaluating a 6 prisoner’s claim, courts consider whether “‘the officials act[ed] with a sufficiently culpable state 7 of mind’ and if the alleged wrongdoing was objectively ‘harmful enough’ to establish a 8 constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 8 (1992) (quoting Wilson, 501 U.S. 9 at 298, 303). 10 A sexual assault on an inmate by a prison official implicates the rights protected by the 11 Eighth Amendment. Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000); see also Boddie 12 v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997) (“Sexual abuse may violate contemporary 13 standards of decency and can cause severe physical and psychological harm”). “Although 14 prisoners have a right to be free from sexual abuse, . . . , the Eighth Amendment’s protections do 15 not necessarily extend to mere verbal sexual harassment.” Austin v. Terhune, 367 F.3d 1167, 16 1171 (9th Cir. 2004) (internal citation omitted). 17 While “the Ninth Circuit has recognized that sexual harassment may constitute a 18 cognizable claim for an Eighth Amendment violation, the Court has specifically differentiated 19 between sexual harassment that involves verbal abuse and that which involves allegations of 20 physical assault, finding the later to be in violation of the constitution.” Minifield v. Butikofer, 21 298 F.Supp.2d 900, 904 (N.D. Cal. 2004) (citing Schwenk, 204 F.3d at 1198)). 22 Plaintiff has alleged that he was sexually assaulted by Grimes. However, none of the 23 allegations contained in the complaint show that plaintiff was physically assaulted. Verbal 24 harassment may violate the Constitution when it is “unusually gross even for a prison setting and 25 [is] calculated to and [does] cause [plaintiff] psychological damage.” Keenan v. Hall, 83 F.3d 26 1083, 1092 (9th Cir. 1996), as amended by 135 F.3d 1318 (9th Cir. 1998). The allegations 27 contained in the complaint were not “unusually gross” nor do they appear calculated to cause 28 plaintiff psychological damage, plaintiff has characterized the exchanges with Grimes as 1 conversations about her personal life. Accordingly, even though plaintiff has concluded that he 2 suffered emotion damage as a result, he has not stated facts sufficient to show that he suffered 3 sexual abuse sufficient to rise to the level of an Eighth Amendment violation. 4 Plaintiff claims that the Prison Rape Elimination Act (PREA) prohibits “the type of 5 conduct Mrs. Grimes practiced on [plaintiff], flirting, personal conversations, daily interactions.” 6 (ECF No. 1 at 16.) 7 “Section 1983 imposes liability on anyone who, under color of state law, deprives a 8 person ‘of any rights privileges, or immunities secured by the Constitution and laws.’” Blessing 9 v. Freestone, 520 U.S. 329, 340 (1997). However, in order to seek redress through § 1983 “a 10 plaintiff must assert the violation of a federal right, not merely a violation of a federal law.” Id. 11 (emphasis in original) (citing Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106 12 (1989). The PREA, 42 U.S.C. § 15601-15609, “authorizes the reporting of incidents of rape in 13 prison, allocation of grants, and creation of a study commission,” but there is nothing in the 14 PREA to indicate that it created a private right of action, enforceable under § 1983. Porter v. 15 Jennings, No. 1:10-cv01811 AWI DLB PC, 2012 WL 1434986, at *1, (E. D. Cal. Apr. 25, 2012); 16 see also Law v. Whitson, No. 2:08-cv-0291 SPK, 2009 WL 5029564, at *4, (E.D. Cal. Dec. 15, 17 2009); Bell v. County of Los Angeles, No. CV 07-8187 GW(E), 2008 WL 4375768, at *6, (C.D. 18 Cal. 2008); Inscoe v. Yates, No. 1:08-cv-1588 DLB PC, 2009 WL 3617810, at *3, (E.D. Cal. 19 2009). There is nothing in the PREA to indicate that it created a private right of action, 20 enforceable under § 1983. See also Blessing, 520 U.S. at 340-41 (statutory provision gives rise to 21 federal right enforceable under § 1983 where the statute “unambiguously impose[d] a binding 22 obligation on the States” by using “mandatory, rather than precatory, terms”). 23 Because the Act itself contains no private right of action, nor does it create a right 24 enforceable under §1983, plaintiff’s allegation of a PREA violation fails to state a claim for relief. 25 D. Failure to Create Rules and Infliction of Emotional Distress 26 Plaintiff complains that he has had issues related to advances from correctional officers 27 for over thirty years. He complains that while the rules state prison staff shall not engage in 28 undue familiarity with inmates, there are no written rules or informational literature to inform 1 inmates of the possibility that staff may initiate inappropriate contact with inmates. (ECF No. 1 2 at 17.) 3 Section 1983 does not create substantive rights, but instead acts as a vehicle for bringing 4 federal constitutional and statutory challenges to actions by state and local officials. Anderson v. 5 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To state a claim under § 1983, a plaintiff must 6 allege the violation of a right secured by the Constitution and laws of the United States, and must 7 show that the alleged deprivation was committed by a person acting under color of state law.” 8 West v. Atkins, 487 U.S. 42, 48 (1988). 9 Plaintiff has not articulated any specific constitutional right that was violated by the 10 failure to create rules or information regarding inmate behavior where prison staff attempt to 11 initiate overfamiliar contact. Accordingly, this allegation fails to state a cognizable § 1983 claim. 12 Plaintiff seeks compensatory damages for the infliction of emotional distress. (ECF No. 1 13 at 20.) However, plaintiff’s claim for mental and emotional injuries is barred by a provision of 14 the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(e). Section 1997(e) provides that: 15 “No Federal civil action may be brought by a prisoner confined in . . . prison . . . , for mental or 16 emotional injury suffered while in custody without a prior showing of physical injury or the 17 commission of a sexual act (as defined by section 2246 of title 18, United States Code).” A 18 “sexual act” as defined by 18 U.S.C. 2246(2) requires some physical contact. 19 Here, plaintiff has not alleged that he engaged in any physical contact with Grimes. 20 Accordingly, plaintiff is barred by § 1997e(e) from seeking damages for any alleged emotional 21 injuries. 22 E. Fourteenth Amendment Due Process 23 Plaintiff claims that Allen violated his right to due process during the disciplinary hearing. 24 (ECF No. 1 at 19-20.) 25 As stated above, the filing of a false RVR by a prison official is not a per se violation of 26 an inmate’s constitutional rights. There are, however, two ways that allegations that an inmate 27 has been subjected to a false disciplinary report can state a cognizable civil rights claim: (1) when 28 the prisoner alleges that the false disciplinary report was filed in retaliation for his exercise of a 1 constitutional right and (2) when the prisoner alleges that she was not afforded procedural due 2 process in a proceeding concerning a false report. See Hines v. Gomez, 108 F.3d 265, 269 (9th 3 Cir. 1997) (“[T]his court has reaffirmed that prisoners may still base retaliation claims on harms 4 that would not raise due process concerns.”); Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 5 1986) (holding that the filing of a false disciplinary charge against a prisoner is not actionable 6 under § 1983 if prison officials provide the prisoner with procedural due process protections); 7 Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984) (“[A]n allegation that a prison guard 8 planted false evidence which implicates an inmate in a disciplinary infraction fails to state a claim 9 for which relief can be granted where the procedural protections . . . are provided.”); see also Ellis 10 v. Foulk, No. 14-cv-0802 AC P, 2014 WL 4676530, at *3 (E.D. Cal. Sept. 18, 2014) (“Plaintiff’s 11 protection from the arbitrary action of prison officials lies in ‘the procedural due process 12 requirement[] . . . .’”) (quoting Hanrahan, 747 F.2d at 1140). 13 Prisoners subjected to disciplinary action are entitled to certain procedural protections 14 under the Due Process Clause, although they are not entitled to the full panoply of rights afforded 15 to criminal defendants. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974); see also 16 Superintendent v. Hill, 472 U.S. 445, 455-456 (1985); United States v. Segal, 549 F.2d 1293, 17 1296-99 (9th Cir. 1977) (prison disciplinary proceedings command the least amount of due 18 process along the prosecution continuum). 19 Prison disciplinary actions are subject to the following procedural requirements under 20 Wolff: (1) written notice of the charges; (2) a hearing, with at least 24-hours advance notice; (3) a 21 written statement by the fact finders of the evidence relied on and the reasons for taking 22 disciplinary action; (4) the prisoner’s right to call witnesses in his or her defense, if doing so 23 would not be unduly hazardous to institutional safety or correctional goals; and (5) legal 24 assistance to prisoners who are illiterate or whose issues are particularly complex. Wolff, 418 25 U.S. at 556-71. 26 Plaintiff claims Allen failed to allow plaintiff to call several witnesses during his 27 disciplinary hearing. Allegations indicating that prison officials refused to call a requested 28 witness could potentially state a cognizable claim. Serrano v. Francis, 345 F.3d 1071, 1079-80 1 (9th Cir. 2003) (reasoning that prison officials can violate prisoners’ due process right to call 2 witnesses in their defense in disciplinary hearings by refusing to allow live witness testimony); 3 Williams v. Thomas, 492 Fed. App’x 732, 733 (9th Cir. 2012) (“Prisoners have a limited 4 procedural due process right to call witnesses at disciplinary hearings so long as it will not be 5 unduly hazardous to institutional safety or correctional goals . . . Prison officials may be required 6 to explain, in a limited manner, the reason why witnesses were not allowed to testify.”). 7 However, plaintiff has not identified Allen as a defendant in this action. Thus, plaintiff 8 has not stated a claim for violation of his due process rights during his disciplinary hearing. 9 AMENDING THE COMPLAINT 10 As explained above, the complaint does not state a claim. However, plaintiff will be 11 given the opportunity to file an amended complaint. In any amended complaint, plaintiff must 12 demonstrate how the conditions about which he complains resulted in a deprivation of his 13 constitutional rights. Rizzo, 423 U.S. at 370-71. Also, the complaint must allege in specific 14 terms how each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 15 1355 (9th Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some 16 affirmative link or connection between a defendant’s action and the claimed deprivation. Id.; 17 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory 18 allegations of official participation in civil rights violations are not sufficient.” Ivey, 673 F.2d at 19 268. 20 Plaintiff is advised that in an amended complaint he must clearly identify each defendant 21 and the action that defendant took that violated his constitutional rights. The court is not required 22 to review exhibits to determine what plaintiff’s charging allegations are as to each named 23 defendant. If plaintiff wishes to add a claim, he must include it in the body of the complaint. The 24 charging allegations must be set forth in the amended complaint so defendants have fair notice of 25 the claims plaintiff is presenting. That said, plaintiff need not provide every detailed fact in 26 support of his claims. Rather, plaintiff should provide a short, plain statement of each claim. See 27 Fed. R. Civ. P. 8(a). 28 //// 1 Any amended complaint must show the federal court has jurisdiction, the action is brought 2 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 3 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 4 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 5 Johnson, 588 F.2d at 743 (a person subjects another to the deprivation of a constitutional right if 6 he does an act, participates in another’s act or omits to perform an act he is legally required to do 7 that causes the alleged deprivation). 8 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 9 R. Civ. P 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 10 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 11 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 12 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 13 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 14 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 15 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 16 set forth in short and plain terms, simply, concisely, and directly. See Swierkiewicz v. Sorema 17 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 18 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 19 Plaintiff is informed that the court cannot refer to a prior pleading in order to make his 20 amended complaint complete. An amended complaint must be complete in itself without 21 reference to any prior pleading. E.D. Cal. R. 220. Once plaintiff files an amended complaint, all 22 prior pleadings are superseded. Therefore, in an amended complaint, as in an original complaint, 23 each claim and the involvement of each defendant must be sufficiently alleged. 24 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 25 has evidentiary support for his allegations, and for violation of this rule the court may impose 26 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 27 //// 28 /// 1 CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiff's motion for leave to proceed in forma pauperis (ECF No. 2) is granted. 4 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 5 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 6 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order 7 to the Director of the California Department of Corrections and Rehabilitation filed 8 concurrently herewith. 9 3. Plaintiff's complaint (ECF No. 1) is dismissed with leave to amend. 10 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 11 complaint that complies with the requirements of the Civil Rights Act, the Federal 12 Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint 13 must bear the docket number assigned to this case and must be labeled “First 14 Amended Complaint.” 15 5. Failure to comply with this order will result in a recommendation that this action be 16 dismissed. 17 || Dated: December 13, 2019

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