1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LEDWIN Q. DEL ROSARIO, Case No. 1:20-cv-0512-BAM (PC) 12 Plaintiff, SCREENING ORDER GRANTING PLAINTIFF LEAVE TO FILE AMENDED 13 v. COMPLAINT 14 SUPERIOR COURT OF COUNTY OF (ECF No. 1) LOS ANGELES, et al., 15 THIRTY (30) DAY DEADLINE Defendants. 16
17 Plaintiff Ledwin Q. Del Rosario (“Plaintiff”) is a state prisoner appearing pro se and in 18 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint, filed 19 on April 10, 2020, is currently before the Court for screening. (ECF No. 1.) 20 I. Screening Requirement and Standard 21 The Court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 23 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 24 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 25 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 26 A complaint must contain “a short and plain statement of the claim showing that the 27 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 28 1 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 2 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 3 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 4 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 5 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 6 To survive screening, Plaintiff’s claims must be facially plausible, which requires 7 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 8 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. 9 Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted 10 unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the 11 plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 12 II. Allegations in Complaint 13 Plaintiff is currently housed in California Correctional Institution at Tehachapi, California 14 (“Tehachapi”) The events in the complaint are alleged to have occurred while Plaintiff was housed 15 at Tehachapi. Plaintiff names the following defendants: (1) the Superior Court of California, 16 County of Los Angeles, (2) California Department of Corrections and Rehabilitations, and (3) Mr. 17 Sullivan (Warden), of Tehachapi. 18 In Claim 1, Plaintiff alleges “during arresting,” there was no due process from the 19 arresting officer and no show or warrant of arrest ordered by the court and signed by a judge or 20 reading Miranda rights. They did the same thing in interrogation. He did not have counsel. 21 There’s a threat every time you go to court from the lawyer that you will lose or should take the 22 deal and cannot win. Plaintiff’s lawyer forced a deal and Plaintiff was scared, and he got a life 23 sentence anyway. They did not follow the sentencing guidelines and the Penal Code, by using a 24 serious violent crime with a strike and no strong DNA evidence. All of it was hearsay and false 25 evidence from the social worker and a friend of his wife. 26 In Claim 2, Plaintiff states that “This kind of changes here in prison are very dangerous 27 why and because counselor’s are giving access to all staff and correctional officers especially this 28 Sgt. Eaton here in CCI, Tehachapi.” They are yelling to all inmates that everybody here is 80% 1 sex offender and child molesters so that they will come and beat you if you do not give them 2 something. There are a lot of fights. Also, correctional officers will open and read your legal mail 3 and they threaten to write you up on a 115. They work 16 hours every day and have bad attitudes 4 and will come mess with you and be disrespectful and traumatize you. 5 In Claim 3, Plaintiff alleges that the old building in D-yard is supposed to be re-entry 6 programs and preparation for getting out. But there is always tensions from other inmates and 7 disrespectful correctional officers. The building is contaminated with asbestos, toxic mold and 8 water with lead. Inmates are forced to work in the kitchen even if sick. When you complain to 9 medical, they don’t give meds just tell you to drink more water. Complaints are denied about bad 10 food, dirty kitchen, dirty bathrooms, with broken ceilings, water, and overcrowded facilities. 11 They do not care and the warden knows it. 12 Plaintiff says he was denied access to the court and have his legal documents when he is 13 exonerated by DNA evidence. Plaintiff does not specifically ask for remedies. 14 III. Discussion 15 Plaintiff’s complaint does not comply with Federal Rule of Civil Procedure 8 and fails to 16 state a cognizable claim for relief. As Plaintiff is proceeding pro se, he will be granted leave to 17 amend his complaint to cure the identified deficiencies to the extent he can do so in good faith. 18 To assist Plaintiff, the Court provides the pleading and legal standards that appear relevant to his 19 allegations 20 A. Federal Rule of Civil Procedure 8 21 Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim 22 showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). “Such a statement must 23 simply give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it 24 rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (citation and internal quotation 25 marks omitted). Detailed factual allegations are not required, but “[t]hreadbare recitals of the 26 elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 27 U.S. at 678 (citation omitted). This is because, while factual allegations are accepted as true, legal 28 conclusions are not. Id.; see also Twombly, 550 U.S. at 556-57; Moss v. U.S. Secret Serv., 572 1 F.3d 962, 969 (9th Cir. 2009). Therefore, Plaintiff must set forth “sufficient factual matter, accepted 2 as true, to ‘state a claim to relief that is plausible on its face.’” A claim has facial plausibility when 3 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 4 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citations and internal 5 quotation marks omitted). 6 Plaintiff’s allegations are disjointed, vague and conclusory statements. Although 7 Plaintiff’s complaint is short, it is not a plain statement of his claims. As a basic matter, the 8 complaint does not clearly state what happened, when it happened or who was involved. If 9 Plaintiff files an amended complaint, it should be a short and plain statement of his claims, and 10 must include factual allegations identifying what happened, when it happened and who was 11 involved. Fed. R. Civ. P. 8. 12 B. Federal Rules of Civil Procedure 18 and 20 13 Plaintiff may not bring unrelated claims against unrelated parties in a single action. Fed.R. 14 Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 15 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so long 16 as (1) the claim arises out of the same transaction or occurrence, or series of transactions and 17 occurrences, and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); 18 Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997). The “same transaction” requirement 19 refers to similarity in the factual background of a claim. Id. at 1349. Only if the defendants are 20 properly joined under Rule 20(a) will the Court review the other claims to determine if they may 21 be joined under Rule 18(a), which permits the joinder of multiple claims against the same party. 22 To the extent the Court can understand Plaintiff’s claims, they are unrelated. Plaintiff may 23 not bring allegations regarding access to courts with a claim about conditions of confinement or 24 with one about medical care. Plaintiff will be granted leave to amend, but Plaintiff is cautioned 25 not to bring unrelated claims in violation of Rule 18(a). 26 C. Eleventh Amendment Immunity 27 The Eleventh Amendment bars federal jurisdiction over suits by individuals against a 28 State and its instrumentalities, unless the State consents to waive its sovereign immunity or 1 Congress abrogates it. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99-100 2 (1984). To overcome this Eleventh Amendment bar, the State's consent or Congress' intent must 3 be “unequivocally expressed.” Pennhurst, 465 U.S. at 99. While California has consented to be 4 sued in its own courts pursuant to the California Tort Claims Act, such consent does not 5 constitute consent to suit in federal court. See BV Engineering v. Univ. of California, 858 F.2d 6 1394, 1396 (9th Cir. 1988); see also Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985) 7 (holding that Art. III, § 5 of the California Constitution does not constitute a waiver of 8 California's Eleventh Amendment immunity). Finally, Congress has not repealed state sovereign 9 immunity against suits brought under 42 U.S.C. § 1983. 10 Because CDCR is a state agency, it is immune from civil rights claims raised pursuant to 11 Section 1983. See Pennhurst, 465 U.S. at 100 (“ This jurisdictional bar applies regardless of the 12 nature of the relief sought.”); see also Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) 13 (the Eleventh Amendment bars claim for injunctive relief against Alabama and its Board of 14 Corrections). Plaintiff’s claims against the State Superior Court are also barred by Eleventh 15 Amendment immunity. Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 16 (9th Cir. 2003) (citations omitted) (claims against state courts under § 1983 are barred by the 17 Eleventh Amendment). 18 If Plaintiff chooses to file an amended complaint, he should not name CDCR or the 19 Superior Court as a defendant. Rather, he should name as defendants those individuals who were 20 personally involved in the alleged constitutional violations. See Taylor v. List, 880 F.2d 1040, 21 1045 (9th Cir. 1989) (no respondeat superior liability under Section 1983. 22 D. Linkage Requirement 23 The Civil Rights Act under which this action was filed provides:
24 Every person who, under color of [state law]...subjects, or causes to be 25 subjected, any citizen of the United States...to the deprivation of any rights, privileges, or immunities secured by the Constitution...shall be liable to the party 26 injured in an action at law, suit in equity, or other proper proceeding for redress. 27 42 U.S.C. § 1983. 28 The statute plainly requires that there be an actual connection or link between the actions 1 of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v. 2 Dep’t of Soc. Servs., 436 U.S. 658, (1978); Rizzo v. Goode, 423 U.S. 362, (1976). The Ninth 3 Circuit has held that “[a] person ‘subjects another to the deprivation of a constitutional right, 4 within the meaning of section 1983, if he does an affirmative act, participates in another’s 5 affirmative acts or omits to perform an act which he is legally required to do that causes the 6 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978). 7 Here, Plaintiff fails to link Warden Sullivan to the allegations in his complaint. To the 8 extent that Plaintiff seeks to hold Warden Sullivan liable based solely on his supervisory role, 9 Plaintiff may not do so. Supervisory personnel may not be held liable under section 1983 for the 10 actions or omissions of subordinate employees based on respondeat superior, or vicarious 11 liability. Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. California 12 Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa Cty., 693 13 F.3d 896, 915-16 (9th Cir. 2012) (en banc). “A supervisor may be liable only if (1) he or she is 14 personally involved in the constitutional deprivation, or (2) there is a sufficient causal connection 15 between the supervisor’s wrongful conduct and the constitutional violation.” Crowley, 734 F.3d 16 at 977; accord Lemire, 726 F.3d at 1074-75; Lacey, 693 F.3d at 915-16. “Under the latter theory, 17 supervisory liability exists even without overt personal participation in the offensive act if 18 supervisory officials implement a policy so deficient that the policy itself is a repudiation of 19 constitutional rights and is the moving force of a constitutional violation.” Crowley, 734 F.3d at 20 977 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks 21 omitted). 22 Plaintiff’s complaint does not include allegations linking the Warden to any constitutional 23 violation nor does it include allegations that the Warden implemented a deficient policy. 24 E. Eighth Amendment – Medical Care 25 Plaintiff may be complaining about medical care. A prisoner’s claim of inadequate medical 26 care does not constitute cruel and unusual punishment in violation of the Eighth Amendment unless 27 the mistreatment rises to the level of “deliberate indifference to serious medical needs.” Jett v. 28 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). 1 The two-part test for deliberate indifference requires Plaintiff to show (1) “a ‘serious medical need’ 2 by demonstrating that failure to treat a prisoner's condition could result in further significant injury 3 or the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant's response to the need 4 was deliberately indifferent.” Jett, 439 F.3d at 1096. 5 A defendant does not act in a deliberately indifferent manner unless the defendant “knows 6 of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. “Deliberate 7 indifference is a high legal standard,” Simmons v. Navajo Cty. Ariz., 609 F.3d 1011, 1019 (9th Cir. 8 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there was “a 9 purposeful act or failure to respond to a prisoner’s pain or possible medical need” and the 10 indifference caused harm. Jett, 439 F.3d at 1096. 11 In applying this standard, the Ninth Circuit has held that before it can be said that a 12 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be 13 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause 14 of action.” Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. 15 at 105–06). “[A] complaint that a physician has been negligent in diagnosing or treating a medical 16 condition does not state a valid claim of medical mistreatment under the Eighth Amendment. 17 Medical malpractice does not become a constitutional violation merely because the victim is a 18 prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. Cty. of Kern, 45 F.3d 1310, 1316 (9th Cir. 19 1995). Even gross negligence is insufficient to establish deliberate indifference to serious medical 20 needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 21 Further, a “difference of opinion between a physician and the prisoner—or between medical 22 professionals—concerning what medical care is appropriate does not amount to deliberate 23 indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 24 F.2d 240, 242 (9th Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 25 1076, 1082–83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122–23 (9th Cir. 2012) (citing 26 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must show that the course 27 of treatment the doctors chose was medically unacceptable under the circumstances and that the 28 defendants chose this course in conscious disregard of an excessive risk to [his] health.” Snow, 681 1 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks omitted). 2 As currently pled, the Court finds that Plaintiff’s complaint does not state a cognizable 3 claim for deliberate indifference to serious medical needs in violation of the Eighth Amendment. 4 It is unclear what happened related regarding medical care. 5 F. Conditions of Confinement 6 Plaintiff appears to be complaining about conditions of confinement. The Eighth 7 Amendment protects prisoners from inhumane methods of punishment and from inhumane 8 conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v. Morgensen, 465 9 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison officials have a 10 duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical 11 care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quotation marks 12 and citations omitted). To establish a violation of the Eighth Amendment, the prisoner must 13 “show that the officials acted with deliberate indifference...” Labatad v. Corrections Corp. of 14 America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v. County of Washoe, 290 F.3d 15 1175, 1187 (9th Cir. 2002)). 16 The deliberate indifference standard involves both an objective and a subjective prong. 17 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer at 834. 18 Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate 19 health or safety.” Id. at 837, 114 S.Ct. 1970; Anderson v. County of Kern, 45 F.3d 1310, 1313 20 (9th Cir. 1995). 21 Objectively, extreme deprivations are required to make out a conditions-of-confinement 22 claim and only those deprivations denying the minimal civilized measure of life’s necessities are 23 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 24 U.S. 1, 9 (1992). Although the Constitution “ ‘does not mandate comfortable prisons,’ ” Wilson v. 25 Seiter, 501 U.S. 294, 298 (1991), “inmates are entitled to reasonably adequate sanitation, personal 26 hygiene, and laundry privileges, particularly over a lengthy course of time,” Howard v. Adkison, 27 887 F.2d 134, 137 (8th Cir. 1989). 28 /// 1 G. Eighth Amendment: Deliberate Indifference to Safety 2 “It is undisputed that the treatment a prisoner receives in prison and the conditions under 3 which he is confined are subject to scrutiny under the [Cruel and Unusual Punishments Clause of 4 the] Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). “[P]rison officials must 5 ensure that inmates receive adequate food, clothing, shelter, and medical care, and must ‘take 6 reasonable measures to guarantee the safety of ... inmates.’ ” Farmer v. Brennan, 511 U.S. 825, 7 832 (1994) (citations omitted). 8 As explained in the previous section, to establish a claim of deliberate indifference, 9 “[p]laintiffs must satisfy both the objective and subjective components of a two-part test.” Hallett 10 v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (citation omitted). First, plaintiffs must show that 11 their alleged deprivation is “sufficiently serious.” Farmer, 511 U.S. at 834 (citation and internal 12 quotation marks omitted). To be sufficiently serious, the “prison official’s act or omission must 13 result in the denial of ‘the minimal civilized measure of life’s necessities.’ ” Id. (quoting Rhodes 14 v. Chapman, 452 U.S. 337, 347 (1981)). Second, plaintiffs must show that the prison official was 15 deliberately indifferent to their health or safety. Farmer, 511 U.S. at 834. A prison official is 16 deliberately indifferent “if he knows that inmates face a substantial risk of serious harm and 17 disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. 18 H. Access to Courts 19 Plaintiff appears to assert some sort of denial of access to the courts. Plaintiff has a 20 constitutional right of access to the courts, and prison officials may not actively interfere with his 21 right to litigate. Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2001) overruled on other 22 grounds as stated by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). The right of 23 access to the courts, however, is limited to non-frivolous direct criminal appeals, habeas corpus 24 proceedings, and § 1983 civil rights actions. Lewis v. Casey, 518 U.S. 343, 354–55 (1996). A 25 claim “is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 26 490 U.S. 319, 325 (1989). 27 In order to frame a claim of a denial of the right to access the courts, a prisoner must 28 allege facts showing that he has suffered “actual injury,” a jurisdictional requirement derived 1 from the standing doctrine. Lewis, 518 U.S. at 349. An “actual injury” is “actual prejudice with 2 respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to 3 present a claim.” Lewis, 518 U.S. at 348 (citation and internal quotations omitted); see also 4 Alvarez v. Hill, 518 F.3d 1152, 1155 n. 1 (9th Cir. 2008) (finding that district properly granted 5 summary judgment because prisoner had not “allege[d] injury, such as inability to file a 6 complaint or defend against a charge” resulting from deficiencies in access to legal materials) 7 (quoting Lewis, 518 U.S. at 353 & 353 n. 4). 8 I. Plaintiff Cannot Challenge the Duration of Confinement in a § 1983 Action 9 Plaintiff appears to challenge his conviction. “Federal law opens two main avenues to 10 relief on complaints related to imprisonment: a petition for writ of habeas corpus, 28 U.S.C. § 11 2254, and a complaint under ... 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 12 (2004) (per curiam). “Challenges to the validity of any confinement or to particulars affecting its 13 duration are the province of habeas corpus; request for relief turning on the circumstances of 14 confinement may be presented in a § 1983 action.” Id. (internal citation omitted). Here, plaintiff’s 15 claim relates to the length of his confinement or proceedings in his underlying conviction. 16 Accordingly, his sole federal remedy is by way of a writ of habeas corpus. Preiser v. Rodriguez, 17 411 U.S. 574, 489 (1973) (“Release from custody is not an available remedy under the Civil 18 Rights Act”); Young v. Kenny, 907 F.2d 874, 875 (9th Cir. 1989) (“Where prisoner challenges 19 the fact or duration of his confinement, his sole federal remedy is a writ of habeas corpus.”). 20 “[T]o the extent plaintiff challenges his credit calculation and overall length of confinement, such 21 a claim fails in a § 1983 case as a matter of law, unless he was able to have the credit 22 determination overturned through a habeas action first.” Clinton v. Calif. Dep’t of Corr., No. 05- 23 cv-1600 LKK CMK P, 2013 WL 5718739 at *10 (E.D. Cal. Oct. 18, 2013), reversed in part on 24 other grounds by Clinton v. Cooper, 781 Fed.Appx. 582 (9th Cir. 2019). 25 Further, to the extent Plaintiff if seeking damages for an allegedly unconstitutional 26 conviction or imprisonment, “a § 1983 plaintiff must prove that the conviction or sentence has 27 been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal 28 authorized to make such determination, or called into question by a federal court's issuance of a 1 writ of habeas corpus, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 487-88 (1994). “A 2 claim for damages bearing that relationship to a conviction or sentence that has not been so 3 invalidated is not cognizable under § 1983.” Id. at 488. 4 J. Legal Mail 5 The Ninth Circuit “recognize[s] that prisoners have a protected First Amendment interest 6 in having properly marked legal mail [including civil mail] opened only in their presence.” Hayes 7 v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017) In Hayes v. Idaho Correctional Center, 8 the Ninth Circuit held that the First Amendment protects prisoners’ right to have legal mail 9 opened in their presence. However, an isolated instance or occasional opening of legal mail 10 outside the inmate’s presence does not rise to the level of a constitutional violation. See 11 Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989). 12 “Mail from the courts, as contrasted to mail from a prisoner’s lawyer, is not legal mail.” 13 Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996). “All correspondence from a court to a litigant 14 is a public document, which prison personnel could if they want inspect in the court’s files.” Id. at 15 1094 (citing to Martin v. Brewer, 830 F.2d 76, 78 (7th Cir. 1987)). Mail from a “sheriff’s” 16 department which is a county agency and such mail also does not constitute legal mail. O’Keefe 17 v. Van Boening, 82 F.3d 322, 326 (9th Cir. 1996) (a prison need not treat all mail sent to/from 18 government agencies and officials as legal mail); see also Keenan v. Hall, 83 F.3d at 1094 19 (concluding that mail from the courts, as contrasted to mail from a prisoner’s lawyer, it not legal 20 mail), amended on denial of rehr’g 135 F.3d 1318 (9th Cir. 1998). 21 IV. Conclusion and Order 22 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8, 18 and 20 23 and fails to state a cognizable federal claim. As Plaintiff is proceeding pro se, the Court will 24 grant Plaintiff an opportunity to amend his complaint to cure these deficiencies to the extent he is 25 able to do so in good faith. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 26 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 27 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 28 U.S. at 678-79, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must 1 be [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 2 555 (citations omitted). 3 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated 4 claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 5 “buckshot” complaints). 6 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 7 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended 8 complaint must be “complete in itself without reference to the prior or superseded pleading.” 9 Local Rule 220. 10 Based on the foregoing, it is HEREBY ORDERED that: 11 1. The Clerk’s Office shall send Plaintiff a complaint form; 12 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file a 13 first amended complaint curing the deficiencies identified by the Court in this order or file a 14 notice of voluntary dismissal; and 15 3. If Plaintiff fails to file an amended complaint in compliance with this order, the 16 Court will recommend dismissal of this action, with prejudice, for failure to obey a court order and 17 for failure to state a claim. 18 IT IS SO ORDERED. 19
20 Dated: August 6, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21
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