(PC) Kohut v. Allison

• Court: District Court, E.D. California
• Decided: July 26, 2022
• Docket: 1:20-cv-01584
• Status: Unknown

Opinion

6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JONATHAN KOHUT, Case No. 1:20-cv-01584-BAK (HBK) (PC)

12 Plaintiff, ORDER GRANTING LEAVE TO FILE SECOND AMENDED COMPLAINT WITHIN 13 v. THIRTY (30) DAYS

14 K. ALLISON, et al., ORDER DENYING AS MOOT MOTION TO EXCEED 25-PAGE LIMIT FOR FIRST 15 Defendants. AMENDED COMPLAINT (Doc. No. 21); MOTION TO STRIKE PREVIOUS FIRST 16 AMEND COMPLAINT AND RENEWED MOTION TO EXCEED 25-PAGE LIMIT (Doc. 17 Nos. 23, 26); MOTION FOR LEAVE TO SUBMIT SUPPLEMENTAL PLEADINGS AS 18 FIRST AMENDED COMPLAINT (Doc. No. 27)

19 ORDER DENYING RESUBMISSION OF REQUEST FOR LEAVE TO CONDUCT PRE- 20 SERVICE DISCOVERY (Doc. No. 18); MOTION FOR IMPOSITION OF SANCTIONS 21 (Doc. No. 20) 22 23 Plaintiff Jonathan Kohut (“Plaintiff”) is a state prisoner proceeding pro se and in forma 24 pauperis in this civil rights action filed under 42 U.S.C. § 1983. Several motions are pending 25 before the Court. For the reasons set forth below, the Court orders Plaintiff to file a second 26 amended complaint (“2AC”). As a result, motions concerning the first amended complaint(s) 27 (“1AC”) are denied as moot. Because no amended complaint has been screened and served, all 28 other pending motions are denied as premature. 1 I. BACKGROUND 2 On November 6, 2020, Plaintiff and Andreana Winter (“Ms. Winter”), Plaintiff’s former 3 fiancé, initiated this action by filing a complaint together. (Doc. No. 1.) At all relevant times, 4 Plaintiff was housed at Pleasant Valley State Prison (“PVSP”), and Ms. Winter was an inmate 5 housed at Central California Women’s Facility (“CCWF”). The Court screened the complaint 6 and found that it stated cognizable First Amendment retaliation and Fourteenth Amendment due 7 process claims against Defendants S. Van Insen, M. Anaya, and John/Jane Doe #1 and #2. (Doc. 8 No. 11.) However, the Court severed the action brought by Ms. Winter and dismissed 9 Defendants M. Padilla, Ollison, J. Gaona, and any John/Jane Doe #3–12, employees of CCWF 10 who were not linked to Plaintiff Kohut’s claims. (Id. at 10.) The Court further determined that 11 the complaint did not state claims against California Department of Corrections and 12 Rehabilitation (“CDCR”), K. Allison, S. Frauenheim, A. Shimmin, J. Buckley, Ollison, and 13 John/Jane Does #3–12. (Id.) The Court gave Plaintiff the options of (1) filing a 1AC that cures 14 the deficiencies identified in the screening order, (2) proceeding with the original complaint as 15 screened, or (3) voluntarily dismissing the case. (Id. at 20–21.) The Court advised: 16 Plaintiff is informed that an amended complaint supersedes the original complaint. Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Thus, the 17 amended complaint must be “complete in itself without reference to the prior or 18 superseded pleading.” L.R. 220. The Court provides Plaintiff with an opportunity to amend his complaint to cure the deficiencies identified in the Court’s first 19 screening order. However, Plaintiff may not change the nature of this suit by 20 adding unrelated claims in an amended complaint. 21 (Id. at 20.) 22 II. AMENDED COMPLAINTS 23 In response to the Court’s first screening order of August 6, 2021, (Doc. No. 11), 24 Plaintiff Jonathan Kohut elected to file a 1AC. (Doc. No. 13.) On February 14, 2022, Plaintiff 25 filed a motion for leave to exceed 25 pages for his 1AC; concurrently, Plaintiff submitted a 181- 26 page 1AC (“first 1AC”) consisting of 35 pages of text and 146 pages of exhibits. (Doc. No. 22.) 27 On May 2, 2022, Plaintiff filed a motion to strike the 1AC, a renewed request for leave to exceed 28 the 25-page limit, and a motion for leave to file supplemental pleadings. (Doc. Nos. 23, 26, 27.) 1 Plaintiff lodged a 41-page 1AC and a five-page declaration in support. (Doc. No. 25, 29.) Although 2 Plaintiff requests that the Court strike the first 1AC, Plaintiff indicates that he wishes to retain the 3 exhibits attached to the first 1AC. (Doc. No. 23 at 2 n.1; see, e.g., Doc. No. 25 at ⁋⁋ 25, 26, 29– 4 33.) As the Court cautioned, such references to the stricken 1AC are improper. See also L.R. 220. 5 Additionally, as proposed by Plaintiff, the operative complaint would consist of the second 1AC, 6 Plaintiff’s declaration, and exhibits to the first 1AC.1 The three documents constituting the 7 operative complaint were filed at three different times and are located at different places in the court 8 file. While Plaintiff appears to count only the pages of the amended complaint itself toward the 9 25-page limitation, the exhibits and Plaintiff’s declaration must also be counted, for a total of 192 10 pages. 11 The Court has conducted a preliminary review of the lodged second 1AC to determine 12 whether the pleading and exhibits warrant the number of pages submitted. Rule 8 states that 13 “[e]ach allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). To ensure 14 compliance with Rule 8, courts of the Eastern District of California generally limit complaints to 15 twenty-five pages. See Lal v. United States, No. 2:20-cv-00349 JAM DB P, 2022 WL 37019, at *2 16 (E.D. Cal. Jan. 3, 2022); Williams v. Corcoran State Prison, No. 1:21-cv-01009-JLT-BAM (PC), 17 2022 WL 1093976, at *1 (E.D. Cal. Apr. 12, 2022). The page limit includes the complaint itself 18 and any exhibits, for a total of twenty-five pages. See Rivas v. Padilla, No. 1:21-cv-00212-GSA 19 PC, 2022 WL 675704, at *2 (E.D. Cal. Mar. 7, 2022). “[A] lengthy complaint can violate Rule 8 20 if a defendant would have difficulty responding to the complaint.” Skinner v. Lee, 2021 U.S. 21 Dist. LEXIS 251321, 2021 WL 6617390, *2-*3 (C. D. Cal. May 20, 2021) (citing Cafasso v. 22 Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011). A district court has the 23 power to dismiss a complaint when a plaintiff fails to comply with Rules 8’s pleading directives. 24 McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996); Nevijel v. North Coast Life Ins. Co., 651 25 F.2d 671, 673 (9th Cir. 1981). When the factual elements of a cause of action are not organized 26 into a short and plain statement for each particular claim, a dismissal for failure to satisfy Rule 27

28 1 8(a) is appropriate. Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988); see also 2 Nevijel, 651 F.2d at 674. 3 Under Rule 8, allegations of facts that are extraneous and not part of the factual basis for 4 the particular constitutional claim are not permitted. See Knapp v. Hogan, 738 F.3d 1106, 1109 5 (9th Cir. 2013) (recognizing that Rule 8 can be violated when the plaintiff provide too much 6 information). As an initial matter, and as further detailed below, Plaintiff’s complaint fails to 7 comply with Rule 8 due to its failure to state short and plain statements. Even with additional 8 defendants and claims, the amended complaint and exhibits do not require or justify 192 pages or 9 even 41 pages. Ms. Winter and her claims have been severed, without objection from Plaintiff 10 Kohut.2 (See Doc. No. 16.) The second 1AC contains excessive verbiage, legal citations, and 11 legal argument that unnecessarily lengthen the pleading. 12 Originals, or copies of evidence (i.e., prison or medical records, witness affidavits, inmate appeals, etc.) need not be submitted until the course of 13 litigation brings the evidence into question (for example, on a motion for 14 summary judgment, at trial, or when requested by the Court). At this point, the submission of evidence is premature as Plaintiff is only required to state 15 a prima facie claim for relief via his factual allegations. Thus, if he chooses to amend his complaint, he need only state the facts upon which he alleges 16 a defendant has violated his constitutional rights and should not submit 17 exhibits. Applegate v. Said, No. 1:16-cv-00289-JLT (PC), 2016 WL 6803568, at *4 (E.D. Cal. Nov. 16, 18 2016); see Hernandez v. Pederio, No. 1:16-cv-00027-DAD-SKO (PC), 2017 WL 1255941, at *3 19 (E.D. Cal. Jan. 27, 2017) (“The Court is not a repository for the parties’ evidence. Originals, or 20 copies of evidence . . . need not be submitted until the course of litigation brings the evidence into 21 question (for example, on a motion for summary judgment, at trial, or when requested by the 22 Court.”)). 23 The Court finds that the lodged lAC fails to comply with Rule 8’s directives to file “a 24 short and plain statement of the claim” with factual allegations that are “simple, concise, and 25 direct.” Fed R. Civ. P. 8(d)(1). A total of 192 pages is unwieldy and requires the Court to devote 26 27

28 2 Plaintiff had requested reconsideration of this ruling by the district court but later filed a notice of 1 an inordinate amount of its time and resources to screen the case as required by 28 U.S.C. 2 § 1915A(a). While each case presents unique facts and different legal issues, Plaintiff’s claims 3 are not complex or extraordinary in nature, and argument and exhibits are unnecessary at this 4 stage of the proceedings. 5 However, to afford Plaintiff an opportunity to present factual allegations supporting his 6 constitutional claims, the Court will allow Plaintiff to file a second amended complaint (“2AC”) 7 limited to a total of 35 pages, inclusive of exhibits. Plaintiff may devote as many of the total 35 8 pages to the text of the amended complaint or exhibits as he wishes. The Court reminds Plaintiff 9 that “a short and plaint statement of the claim” under Rule 8 must simply “give the defendant fair 10 notice of what the plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz v. 11 Sorema N. A., 534 U.S. 506, 512 (2002). 12 Plaintiff’s 2AC should be brief under Rule 8(a), but it must state what each named and 13 unidentified defendant did that led to the deprivation of Plaintiff’s constitutional rights. Ashcroft v. 14 Iqbal, 556 U.S. 662, 678–79 (2009). Detailed factual allegations are not required, but 15 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 16 statements, do not suffice.” Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 17 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is 18 plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual 19 allegations are accepted as true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing 20 Twombly, 550 U.S. at 555). 21 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 22 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 23 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal theories. 24 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). 25 Plaintiff is reminded that an amended complaint supersedes the original complaint. 26 Lacey, 693 F.3d at 927. The Local Rules require an amended complaint to be “complete in itself 27 without reference to the prior or superseded pleading.” L.R. 220. Plaintiff has indicated that he 28 intends to add allegations of events that occurred in 2021 and 2022 to establish ongoing 1 constitutional violations. Therefore, Plaintiff is again cautioned that he may not change the 2 nature of this suit by adding new, unrelated claims in the second amended complaint. (See Doc. 3 Nos. 11 at 20, 17 at 2.) Because Plaintiff seeks to re-assert claims against defendants whom the 4 Court determined should be dismissed, Plaintiff is advised again that the amended complaint 5 should cure deficiencies identified in the screening order. (Id.) 6 Because the Court orders Plaintiff to file a 2AC, Plaintiff’s motions related to the 1ACs, 7 (Doc. Nos. 21, 23, 26, 27), are denied as moot. 8 III. PRE-SERVICE DISCOVERY 9 Plaintiff has renewed his request for the Court’s assistance in discovering the identities of 10 the unknown defendants to expedite the progression of this case. (Doc. No. 18.) The 11 circumstances of this case do not necessitate deviation from standard procedures. At this stage 12 of the proceedings, there is no operative complaint, and the Court must first screen the 2AC to 13 determine if it states viable claims against these unidentified defendants. If so, the Court will 14 afford the Plaintiff an opportunity to conduct early discovery through a subpoena duces tecum to 15 obtain relevant information from the jail. 16 The Court’s authorization of a subpoena duces tecum requested by an in forma 17 pauperis plaintiff is subject to limitations, however. Because personal service of a 18 subpoena duces tecum is required under Rule 45(b), “[d]irecting the Marshal’s Office to 19 expend its resources personally serving a subpoena is not taken lightly by the court.” 20 Austin v. Winett, No. 1:04-cv-05104-DLB PC, 2008 WL 5213414, *1 (E.D. Cal. Dec. 12, 21 2008); see also 28 U.S.C. § 1915(d). Limitations include the relevance of the information 22 sought, as well as the burden and expense to the non-party in providing the requested 23 information. Fed. R. Civ. P. 26, 45. A motion for issuance of a subpoena duces tecum 24 should be supported by clear identification of the documents sought and a showing that the 25 records are obtainable only through the identified third party. See, e.g., Davis v. Ramen, 26 No. 1:06-cv-01216-AWI-SKO (PC), 2010 WL 1948560, *1 (E.D. Cal. May 11, 2010); 27 Williams v. Adams, No. 1:05-cv-00124-AWI-SMS (PC), 2010 WL 148703, *1 (E.D. Cal. 28 Jan. 14, 2010). The “Federal Rules of Civil Procedure were not intended to burden a non- 1 party with a duty to suffer excessive or unusual expenses in order to comply with a 2 subpoena duces tecum.” Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991). Non- 3 parties are “entitled to have the benefit of this Court’s vigilance” in considering these 4 factors. Id. 5 Plaintiff’s argument that pre-service discovery will avoid the need for an additional 6 amendment is unavailing. When Plaintiff receives the information sought, he only needs to 7 substitute “John Doe” with the actual names of these defendants. Accordingly, Plaintiff’s re- 8 submitted motion to conduct pre-service discovery, (Doc. No. 18), is denied. 9 IV. IMPOSITION OF SANCTIONS 10 Plaintiff has filed an ex parte motion for sanctions under Rule 11(b)(1)–(3), (c). (Doc. 11 No. 20.) Plaintiff appears to argue that R. Godwin, as retired Warden S. Fraudeheim’s 12 successor, is liable in his official capacity for constitutional violations committed by Fraudeheim, 13 Godwin, and subordinates; and Godwin is subject to a temporary restraining order. (Id.) 14 Plaintiff describes an incident that occurred on December 13, 2021. (Id. at 2.) Plaintiff alleges 15 that, while at the library, Plaintiff requested 150 pages of pleading paper in order to draft 16 submissions in federal and state cases, but the librarian only provided Plaintiff 10 pages based on 17 a rule that prisoners were allotted 10 pages of pleading paper per week. (Id.) Plaintiff contends 18 that the rule unconstitutionally obstructs litigation and interferes with Plaintiff’s ability to access 19 the courts. 20 As relief, Plaintiff requests the Court to “issue an order directing R. Godwin and/or his 21 agents to cease any attempts to obstruct litigation and in addition to impose an appropriate 22 sanction to effectively dissuade such acts being carried out in the future of this action.” (Id. at 23 2.) Without an operative complaint, however, the Court has no basis to issue such an order to a 24 non-party. Additionally, Rule 11(c) provides: “If, after notice and a reasonable opportunity to 25 respond, the court determines that Rule 11(b) has been violated, the court may impose an 26 appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for 27 the violation.” Fed. R. Civ. P. 11(c)(1). This subsection is inapplicable because no attorney, law 28 firm, or other party has appeared in this case or made any representation to the Court in violation 1 | of Rule 11(b). Therefore, Plaintiffs motion for Rule 11 sanctions, (Doc. No. 20), lacks merit 2 | and is denied. 3 Accordingly, it is ORDERED: 4 1. Plaintiff SHALL file a second amended complaint, not to exceed a total of 35 5 pages, within thirty (30) days from the date of service of this Order; 6 2. Plaintiff's motion to exceed 25-page limit for first amended complaint (Doc. No. 7 21) is DENIED AS MOOT; 8 3. The motion to strike previous first amend complaint and renewed motion to 9 exceed 25-page limit (Doc. Nos. 23, 26) are DENIED AS MOOT; 10 4. The motion for leave to submit supplemental pleadings as first amended 11 complaint, (Doc. No. 27), is DENIED AS MOOT; 12 5. Plaintiff's submission of request for leave to conduct pre-service discovery, (Doc. 13 No. 18), is DENIED; and 14 6. The motion for imposition of sanctions, (Doc. No. 20), is DENIED. 15 7. The Clerk of Court is directed to send Plaintiff a civil rights complaint form. 16 | If Plaintiff fails to comply with this Order, the Court will recommend that this action be 17 | dismissed without prejudice for failure to obey a court order and failure to prosecute. 18 | Dated: _ July 25,2022 Mile. Wh fareh Zaskth 20 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE

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