1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VENCIL GREEN, No. 2:19-cv-1324 JAM KJN P 12 Plaintiff, 13 v. ORDER 14 J. LINK, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to 19 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. 20 § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. 21 § 636(b)(1). 22 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 23 Accordingly, the request to proceed in forma pauperis is granted. 24 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 25 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 26 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 27 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 28 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly 1 payments of twenty percent of the preceding month’s income credited to plaintiff’s trust account. 2 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 3 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 4 § 1915(b)(2). 5 II. Screening Standards 6 The court is required to screen complaints brought by prisoners seeking relief against a 7 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 8 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 9 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 10 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 11 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 12 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 13 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 14 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 15 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 16 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 17 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 18 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 19 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 20 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 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 26 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 27 sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific 28 facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what 1 the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 2 (2007) (quoting Twombly, 550 U.S. at 555, citations and internal quotations marks omitted). In 3 reviewing a complaint under this standard, the court must accept as true the allegations of the 4 complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most 5 favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other 6 grounds, Davis v. Scherer, 468 U.S. 183 (1984). 7 III. Discussion 8 A. Defendants 9 In his complaint, plaintiff names as defendants 23 individuals who work at Mule Creek 10 State Prison (“MCSP”) or the California Department of Corrections (“CDCR”), including the 11 Warden and Acting Warden at MCSP, and the Secretary of CDCR. 12 B. Multiple, Unrelated Incidents 13 Plaintiff includes allegations concerning multiple, unrelated incidents that occurred at 14 MCSP: 15 First, plaintiff raises retaliation claims based on various incidents that occurred from 2017 16 to 2019 in the visiting room, as well as actions taken in related administrative appeals, and 17 subsequent disciplinary proceedings. Plaintiff also raises various claims concerning his wife, 18 including a claim that prison staff placed her too close to the fan, despite knowing her medical 19 conditions. 20 Second, plaintiff claims his Fourteenth Amendment due process rights were violated by 21 the falsifying of documents by defendants Link and Radus on April 14, 15, 2018, and May 5, 22 2018, related to the calculation of plaintiff’s minimum eligibility release date and the earning and 23 loss of time credits. (ECF No. 1 at 19.) 24 Third, plaintiff alleges that every weekend since May 2018, he has been exposed to an 25 excessive level of radiation in violation of the Eighth Amendment. (ECF No. 1 at 20.) Because 26 his wife visits every weekend, plaintiff is compelled to undergo a full body x-ray of radiation 27 without a “protective gonal shield.” (Id.) 28 //// 1 Plaintiff is advised that he may not pursue unrelated claims in one lawsuit. Plaintiff may 2 join multiple claims if they are all against a single defendant. Fed. R. Civ. P. 18(a). If plaintiff 3 has more than one claim based upon separate transactions or occurrences, the claims must be set 4 forth in separate paragraphs. Fed. R. Civ. P. 10(b). Unrelated claims against different defendants 5 must be pursued in multiple lawsuits. 6 The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim . . . may join, [] as independent or as alternate 7 claims, as many claims . . . as the party has against an opposing party.’ Thus multiple claims against a single party are fine, but Claim 8 A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants 9 belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to 10 ensure that prisoners pay the required filing fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or 11 appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g). 12 13 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Fed. R. Civ. P. 20(a)(2) (joinder of 14 defendants not permitted unless both commonality and same transaction requirements are 15 satisfied). 16 Here, it appears that plaintiff may be able to state a cognizable First Amendment claim 17 based on the alleged retaliation by defendant Link,1 but plaintiff may only pursue such claims 18 based on incidents involving the same defendant in one case. Other retaliation claims must be 19 filed in a separate action. In addition, the remainder of plaintiff’s allegations are unrelated and 20 must be pursued in separate lawsuits. In addition, as to the third cause of action, it is unclear to 21 what machine plaintiff is referring. However, if plaintiff is referring to the magnetometer that is 22 used for security screenings every day at the airport and courthouses, as well as state prisons, it is 23 unlikely plaintiff can state a cognizable federal civil rights claim as to such use.2 In any event, 24 1 On August 19, 2019, plaintiff filed an exhibit confirming that he exhausted his retaliation claim 25 against defendant Link based on an exchange on November 25, 2018. (ECF No. 10 at 2.)
26 2 As one Supreme Court Justice noted, “[a]irport magnetometers and x-ray machines and sobriety 27 checkpoints are not absolutely indispensable to combat air piracy and drunk driving, but this per se does not render them unreasonable.” Jordan v. Gardner, 986 F.2d 1521, 1564 (9th Cir. 1993) 28 (Trotter, J., dissent). 1 such claim is wholly unrelated to plaintiff’s retaliation claim and must also be pursued in a 2 separate lawsuit. 3 Accordingly, plaintiff’s complaint is dismissed, and plaintiff is granted leave to file an 4 amended complaint raising only related claims. 5 C. Potential Governing Standards 6 In order to assist plaintiff in amending the complaint, he is advised of the following 7 standards governing his claims. 8 1. Causation 9 The Civil Rights Act under which this action was filed provides as follows: 10 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 11 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, 12 or other proper proceeding for redress. 13 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 14 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 15 Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983 16 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no 17 affirmative link between the incidents of police misconduct and the adoption of any plan or policy 18 demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another 19 to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative 20 act, participates in another’s affirmative acts or omits to perform an act which he is legally 21 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 22 F.2d 740, 743 (9th Cir. 1978). 23 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 24 their employees under a theory of respondeat superior and, therefore, when a named defendant 25 holds a supervisorial position, the causal link between him and the claimed constitutional 26 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) 27 (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 28 438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert. 1 denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of 2 official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 3 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal 4 participation is insufficient). 5 Plaintiff argues that once a supervisor has or is given culpable knowledge of his 6 subordinate’s unconstitutional acts and fails to act or intervene or train the supervisor can be held 7 liable under § 1983. (ECF No. 1 at 24.) Plaintiff’s argument wrongfully broadens the scope of 8 such liability to include mere knowledge. In Hansen, the court stated that “[a] supervisor may be 9 liable if there exists either (1) his or her personal involvement in the constitutional deprivation, or 10 (2) a sufficient causal connection between the supervisor’s wrongful conduct and the 11 constitutional violation.” Hansen v. Black, 885 F.2d 642 (9th Cir. 1989) (citation omitted) 12 (emphasis added). The requisite causal connection between a supervisor’s wrongful conduct and 13 the violation of the prisoner’s constitutional rights can be established in a number of ways, 14 including by demonstrating that a supervisor’s own culpable action or inaction in the training, 15 supervision, or control of his subordinates was a cause of plaintiff's injury. Starr v. Baca, 652 16 F.3d 1202, 1208 (9th Cir. 2011); Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991). 17 A plaintiff must also show that the supervisor had the requisite state of mind to establish liability, 18 which turns on the requirement of the particular claim -- and, more specifically, on the state of 19 mind required by the particular claim -- not on a generally applicable concept of supervisory 20 liability. Oregon State University Student Alliance v. Ray, 699 F.3d 1053, 1071 (9th Cir. 2012). 21 Here, plaintiff names the Secretary of the CDCR, the Warden and the Acting Warden as 22 defendants. However, plaintiff is advised that the act of writing a letter or otherwise notifying 23 such officials after the alleged violation has taken place does not demonstrate such officials’ 24 involvement in the alleged violation. Rather, in order to state a claim against such individuals, 25 plaintiff must demonstrate such supervisor’s own culpable action or inaction in the alleged 26 violation, not simply an awareness of the alleged violation. 27 //// 28 //// 1 2. Retaliation 2 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to 3 petition the government may support a Section 1983 claim. See Pratt v. Rowland, 65 F.3d 802, 4 807 (9th Cir. 1995). Within the prison context, a viable claim of First Amendment retaliation 5 entails five basic elements: (1) the prisoner engaged in protected conduct; (2) an assertion that a 6 state actor took some adverse action against an inmate; (3) the adverse action was “because of” 7 the prisoner’s protected conduct; (4) the adverse action chilled the inmate’s exercise of his First 8 Amendment rights; and (5) the action did not reasonably advance a legitimate correctional goal. 9 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). “Because direct evidence of 10 retaliatory intent rarely can be pleaded in a complaint, allegation of a chronology of events from 11 which retaliation can be inferred is sufficient to survive dismissal.” Watison v. Carter, 668 F.3d 12 1108, 1114 (9th Cir. 2012); Pratt, 65 F.3d at 808 (“[T]iming can properly be considered as 13 circumstantial evidence of retaliatory intent”). 14 That said, the conduct of plaintiff’s wife is not “protected conduct” upon which plaintiff 15 may base his claim of retaliation. Rather, plaintiff must focus on his own protected conduct and 16 the alleged retaliatory acts taken as a result of plaintiff’s protected conduct. 17 3. Administrative Appeal Process 18 The Due Process Clause protects plaintiff against the deprivation of liberty without the 19 procedural protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209, 20 221 (2005). However, plaintiff has no stand-alone due process rights related to the administrative 21 grievance process. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 22 F.2d 639, 640 (9th Cir. 1988). A prison official’s denial of a grievance does not itself violate the 23 constitution. Evans v. Skolnik, 637 Fed. Appx. 285, 288 (9th Cir. 2015), cert. dism’d, 136 S. Ct. 24 2390 (2016). Thus, the denial, rejection, or cancellation of a grievance does not constitute a due 25 process violation. See, e.g., Wright v. Shannon, 2010 WL 445203, at *5 (E.D. Cal. Feb. 2, 2010) 26 (plaintiff’s allegations that prison officials denied or ignored his inmate appeals failed to state a 27 cognizable claim under the First Amendment); Towner v. Knowles, 2009 WL 4281999 at *2 28 (E.D. Cal. Nov. 20, 2009) (plaintiff’s allegations that prison officials screened out his inmate 1 appeals without any basis failed to indicate a deprivation of federal rights); Williams v. Cate, 2 2009 WL 3789597, at *6 (E.D. Cal. Nov. 10, 2009) (“Plaintiff has no protected liberty interest in 3 the vindication of his administrative claims.”). 4 4. False Report 5 A “complaint alleging that an officer filed a false report, by itself, fails to state a claim 6 upon which relief can be granted.” Koch v. Austin, 2006 WL 403818, at *5 (E.D. Cal. Feb. 16, 7 2006), adopted by 2006 WL 842585 (Mar. 28, 2006). A cognizable claim is stated only if there is 8 evidence that the false report was retaliatory, or the inmate is not afforded procedural due 9 process3 in the hearing on the disciplinary charge. See Pratt v. Rowland, 769 F.Supp.1128, 1134 10 (N.D. Cal. 1991) (filing false report states a claim only if retaliatory); Freeman v. Rideout, 808 11 F.2d 949, 953 (2d Cir. 1986) (guards’ “filing of unfounded charges did not give rise to a per se 12 constitutional violation actionable under section 1983”); Sprouse v. Babcock, 870 F.2d 450, 452 13 (9th Cir. 1989) (claim based on falsity of charges, standing alone, did not state a constitutional 14 claim) and Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984) (guards’ fabrication of 15 evidence does not state a claim if procedural protections are provided during disciplinary 16 hearing). 17 5. Conditions of Confinement Claim – Eighth Amendment 18 The Eighth Amendment protects prisoners from inhumane conditions of confinement. 19 Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Prison officials have a duty to 20 ensure that prisoners are provided, among other things, adequate shelter, sanitation, and personal 21 safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). Conditions of confinement may be 22 restrictive and harsh; however, they cannot involve the “wanton and unnecessary infliction of 23 3 A prisoner is entitled to certain due process protections when he is charged with a disciplinary 24 violation. Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003) (citing Wolff, 418 U.S. at 564- 71). “Such protections include the rights to call witnesses, to present documentary evidence and 25 to have a written statement by the fact-finder as to the evidence relied upon and the reasons for the disciplinary action taken.” Serrano, 345 F.3d at 1078. However, these procedural protections 26 “adhere only when the disciplinary action implicates a protected liberty interest in some 27 ‘unexpected matter’ or imposes an ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Id. (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)); 28 see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). 1 pain” or be devoid of a legitimate penological purpose. Rhodes v. Chapman, 452 U.S. 337, 347, 2 101 S. Ct. 2392 (1981). 3 Where a prisoner alleges injuries stemming from unsafe conditions of confinement, prison 4 officials may be held liable only if they acted with “deliberate indifference to a substantial risk of 5 serious harm.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The deliberate indifference 6 standard involves an objective and a subjective prong. First, the plaintiff must show that the 7 alleged deprivation was “sufficiently serious” to rise to the level of an Eighth Amendment 8 violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 9 298 (1991)); Johnson, 217 F.3d at 731. Second, the plaintiff must show that the prison official 10 acted with a “sufficiently culpable state of mind”; that is, that the official “kn[ew] of and 11 disregarded an excessive risk to inmate health or safety. . . .” Farmer, 511 U.S. at 837; Thomas v. 12 Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (“[T]he inmate must show that the prison officials 13 had no ‘reasonable’ justification for the deprivation.”). 14 6. Verbal Threats 15 Allegations of harassment, embarrassment, and defamation are not cognizable under 16 section 1983. Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1353 (9th Cir.1981), aff’d sub 17 nom. Kush v. Rutledge, 460 U.S. 719 (1983); see also Franklin v. Oregon, 662 F.2d 1337, 1344 18 (9th Cir.1982) (allegations of harassment with regards to medical problems not cognizable); 19 Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir. 1975) (Arkansas state prisoner does not have 20 cause of action under § 1983 for being called obscene name by prison employee); Batton v. North 21 Carolina, 501 F.Supp. 1173, 1180 (E.D. N.C. 1980) (mere verbal abuse by prison officials does 22 not state claim under § 1983). Nor are allegations of mere threats, standing alone, cognizable. 23 See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere threat does not constitute 24 constitutional wrong, nor do allegations that naked threat was for purpose of denying access to 25 courts compel contrary result). 26 IV. Leave to Amend 27 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is 28 unable to determine whether the current action is frivolous or fails to state a claim for relief. The 1 court has determined that the complaint does not contain a short and plain statement as required 2 by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a 3 complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones 4 v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least 5 some degree of particularity overt acts which defendants engaged in that support plaintiff’s claim. 6 Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the 7 complaint must be dismissed. The court, however, grants leave to file an amended complaint. 8 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 9 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. Rizzo, 423 10 U.S. at 371. Also, the complaint must allege in specific terms how each named defendant is 11 involved. Id. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative 12 link or connection between a defendant’s actions and the claimed deprivation. Id.; May v. 13 Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Duffy, 588 F.2d at 743. Furthermore, vague and 14 conclusory allegations of official participation in civil rights violations are not sufficient. Ivey, 15 673 F.2d at 268. 16 In an amended complaint, plaintiff may join multiple claims only if they are all against a 17 single defendant. Fed. R. Civ. P. 18(a). In addition, a plaintiff may join multiple defendants in 18 one action where “any right to relief is asserted against them jointly, severally, or in the 19 alternative with respect to or arising out of the same transaction, occurrence, or series of 20 transactions and occurrences” and “any question of law or fact common to all defendants will 21 arise in the action.” Fed. R. Civ. P. 20(a)(2). Unrelated claims against different defendants must 22 be pursued in separate lawsuits. See George, 507 F.3d at 607. This rule is intended “not only to 23 prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to 24 ensure that prisoners pay the required filing fees -- for the Prison Litigation Reform Act limits to 25 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the 26 required fees. 28 U.S.C. § 1915(g).” George, 507 F.3d at 607. 27 A district court must construe a pro se pleading “liberally” to determine if it states a claim 28 and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an 1 opportunity to cure them. See Lopez v. Smith, 203 F.3d at 1130-31. While detailed factual 2 allegations are not required, “[t]hreadbare recitals of the elements of a cause of action, supported 3 by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678 (2009) (citing 4 Twombly, 550 U.S. at 555). Plaintiff must set forth “sufficient factual matter, accepted as true, to 5 ‘state a claim to relief that is plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting 6 Twombly, 550 U.S. at 570). 7 A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 8 defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for 9 more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a 10 defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. 11 12 Ashcroft, 556 U.S. at 678 (citations and quotation marks omitted). Although legal conclusions 13 can provide the framework of a complaint, they must be supported by factual allegations, and are 14 not entitled to the assumption of truth. Id. at 1950. 15 An amended complaint must be complete in itself without reference to any prior pleading. 16 Local Rule 15-220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an 17 amended complaint, the original pleading is superseded. 18 Plaintiff is informed that he is not required to provide legal citations or a memorandum of 19 points and authorities in support of his amended complaint. Rather, he should focus on the facts 20 supporting his cause of action. Importantly, the federal rules contemplate brevity. See Galbraith 21 v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the 22 circuits have now disapproved any heightened pleading standard in cases other than those 23 governed by Rule 9(b).”); Fed. R. Civ. P. 84; cf. Rule 9(b) (setting forth rare exceptions to 24 simplified pleading). Plaintiff’s claims must be set forth in short and plain terms, simply, 25 concisely and directly. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) 26 is the starting point of a simplified pleading system, which was adopted to focus litigation on the 27 merits of a claim.”); Fed. R. Civ. P. 8. Plaintiff must eliminate from plaintiff’s pleading all 28 preambles, introductions, argument, speeches, explanations, stories, griping, vouching, evidence, 1 attempts to negate possible defenses, summaries, and the like. McHenry v. Renne, 84 F.3d 1172, 2 1180 (9th Cir. 1996) (affirming dismissal of § 1983 complaint for violation of Rule 8 after 3 warning); see Crawford-El v. Britton, 523 U.S. 574, 597 (1998) (reiterating that “firm application 4 of the Federal Rules of Civil Procedure is fully warranted” in prisoner cases). The court (and 5 defendant) should be able to read and understand plaintiff’s pleading within minutes. McHenry, 6 84 F.3d at 1177. A long, rambling pleading, including many defendants with unexplained, 7 tenuous or implausible connection to the alleged constitutional injury or joining a series of 8 unrelated claims against many defendants very likely will result in delaying the review required 9 by 28 U.S.C. § 1915 and an order dismissing plaintiff’s action pursuant to Fed. R. Civ. P. 41 for 10 violation of these instructions. 11 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 12 has evidentiary support for his allegations, and for violation of this rule the court may impose 13 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 14 Finally, plaintiff is cautioned that failure to comply with this court’s order may result in 15 the imposition of sanctions, including a recommendation that the action be dismissed. 16 V. Request for Leave to File Supplemental Complaint 17 On August 12, 2019, plaintiff sought leave to file a supplemental complaint. Fed. R. Civ. 18 P. 15D. Under limited circumstances, a plaintiff may add newly exhausted claims to an existing 19 action. See Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010) (authorizing amended complaint 20 containing newly exhausted claims based on related conduct that occurred after the filing of the 21 original complaint). But “a prisoner must exhaust his administrative remedies for the claims 22 contained within his complaint before that complaint is tendered to the district court.” Id. at 23 1004, citing McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam); and Vaden v. 24 Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). The United States Supreme Court confirmed 25 that district courts are bound by the Prison Litigation Reform Act’s textual mandate requiring all 26 inmates to exhaust administrative remedies before bringing an action in federal court. See Ross 27 v. Blake, 136 S. Ct. 1850, 1856-57 (2016) (refuting a “special circumstance” exception to the rule 28 of exhaustion). The new allegations raised in his request involve incidents that occurred in June 1 and July of 2019. Moreover, because plaintiff’s underlying complaint is being dismissed for 2 improper joinder of unrelated claims, the undersigned is unable to determine whether the 3 proposed claims would properly be joined in this action even if plaintiff had exhausted his 4 administrative remedies prior to the date this action was filed. Plaintiff’s request (ECF No. 9) is 5 denied. 6 VI. Exhibits 7 On two separate occasions, plaintiff has separately filed sets of exhibits. (ECF Nos. 7 8 (200 pages), 10 (15 pages).) Such exhibits were not appended to plaintiff’s pleading or filed with 9 a motion or opposition to a motion. Plaintiff is advised that the court is not a repository for 10 evidence. Moreover, in screening the complaint, the court is not required to search the court 11 docket to ascertain whether plaintiff has submitted any exhibit pertinent to a pleading filed before 12 or after such exhibit was filed. Thus, plaintiff shall refrain from separately submitting sets of 13 exhibits for filing in this case. 14 In addition, plaintiff is not required to append exhibits to his pleading or submit evidence 15 at the pleading stage.4 While permissible, Fed. R. Civ. P. 10(c), exhibits are not necessary in the 16 federal system of notice pleading, Fed. R. Civ. P. 8(a). Thus, plaintiff is encouraged to refrain 17 from submitting such exhibits as they confuse the record and burden the court. Plaintiff will have 18 an opportunity to submit evidence at the appropriate time, for example, upon the filing of a 19 motion for summary judgment or trial. 20 VII. Conclusion 21 In accordance with the above, IT IS HEREBY ORDERED that: 22 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 23 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 24 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 25 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 26 4 Indeed, the practice of attaching reams of documents to a complaint usually does not aid the 27 court in any way, and instead Aneedlessly complicates challenges to the sufficiency of pleadings.@ Montgomery v. Buege, 2009 WL 1034518 at *4 (E.D. Cal. April 16, 2009) (Shubb, J.) (striking 28 attached exhibits which Ado not form the basis of the claims alleged in the Complaint@). 1 | Director of the California Department of Corrections and Rehabilitation filed concurrently 2 | herewith. 3 3. Plaintiff’s complaint is dismissed. 4 4. Within thirty days from the date of this order, plaintiff shall complete the attached 5 | Notice of Amendment and submit the following documents to the court: 6 a. The completed Notice of Amendment; and 7 b. An original and one copy of the Amended Complaint. 8 | Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the 9 | Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 10 | also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 11 Failure to file an amended complaint in accordance with this order may result in the 12 | dismissal of this action. 13 5. The Clerk of the Court is directed to send plaintiff a prisoner civil rights complaint 14 | form. 15 6. Plaintiff’s request (ECF No. 9) is denied. 16 | Dated: August 27, 2019 " Aectl Aharon 18 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 19 20 | /eree1324.14n 21 22 23 24 25 26 27 28 14
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VENCIL GREEN, No. 2:19-cv-1324 JAM KJN P 12 Plaintiff, 13 v. NOTICE OF AMENDMENT 14 J. LINK, et al., 15 Defendants. 16 17 Plaintiff hereby submits the following document in compliance with the court’s order 18 filed______________. 19 _____________ Amended Complaint DATED: 20
21 ________________________________ Plaintiff 22 23 24 25 26 27 28