1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NGUYEN LUC VAN, No. 2:20-cv-0502 JAM KJN P 12 Plaintiff, 13 v. ORDER 14 GIVENS, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se and in forma pauperis. Plaintiff seeks relief 18 pursuant to 42 U.S.C. § 1983. On March 16, 2020, plaintiff was granted leave to amend. 19 Following an extension of time, plaintiff filed an amended complaint. Subsequently, plaintiff 20 filed a second amended complaint. As discussed below, plaintiff’s second amended complaint is 21 dismissed with leave to amend. 22 I. Screening Standards 23 The court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 25 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 26 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 27 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 28 //// 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 3 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 6 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 7 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 8 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 9 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 10 1227. 11 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 12 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 13 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 14 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 15 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 16 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 17 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 18 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 19 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 20 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 21 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 22 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 23 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 24 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 25 The Civil Rights Act 26 To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal 27 constitutional or statutory right; and (2) that the violation was committed by a person acting under 28 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 1 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the 2 facts establish the defendant’s personal involvement in the constitutional deprivation or a causal 3 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation. 4 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 5 (9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable 6 for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 7 (2009). In sum, plaintiff must identify the particular person or persons who violated his rights, 8 and set forth specific factual allegations as to how such person violated plaintiff’s rights. 9 II. Plaintiff’s Allegations 10 Plaintiff’s second amended complaint again includes unrelated claims, all based on 11 incidents that took place at California Medical Facility (“CMF”), against Correctional Officer 12 Givens, inmate Clifton Freeman, Warden Jared Lazono, and Dr. Beck. Plaintiff has since been 13 transferred to the California Health Care Facility. 14 In his first claim, marked “excessive force,” plaintiff alleges that on June 18, 2019, 15 defendant Givens refused to let plaintiff seal his confidential legal mail to the Central Intelligence 16 Agency (“CIA”). Plaintiff alleges that he has not received a response from the CIA. Plaintiff 17 claims he sustained “bad hurt” to his “brain left side,” and his “left eye hurt[s].” (ECF No. 15 at 18 3.) 19 Plaintiff’s second claim is not clear. Plaintiff marked “retaliation,” and claims that 20 defendant Givens and Correctional Officer Reece did not respond to plaintiff’s request to move 21 out of the lower bunk because plaintiff got in trouble on August 2, 2019. Plaintiff then alleges 22 that Givens and Reece put inmate Freeman in plaintiff’s cell. Plaintiff claims Freeman tried to 23 harm plaintiff, and Freeman “had order from C/O in prison CMF came into upper bunk 134 for 24 easy murder.” (ECF No. 15 at 4.) Plaintiff sustained trauma to both sides of his head, and “bad 25 hurt” to his “brain left side,” and his “left eye hurt[s].” (ECF No. 15 at 4.) 26 In his third claim, plaintiff marked “threat to safety.” (ECF No. 15 at 5.) After his release 27 from the hospital, plaintiff refused to return to D Dorm because it would be “easy for them to 28 kill” him, so he was put inside the “Willis,” or Segregated Housing Unit (“SHU”). Plaintiff 1 served a 90-day SHU term following a hearing by Warden Lazono. At the second committee, 2 plaintiff did not see the warden. Plaintiff alleges that the warden “lack [sic] duty with inmate. 3 Got trouble very dangerous. By someone try murder I am [sic].” (ECF No. 15 at 5.) Plaintiff 4 sustained “bad hurt” to his “brain left side,” and his “left eye hurt[s].” (ECF No. 15 at 5.) 5 III. Discussion 6 A. First Claim 7 Plaintiff’s allegations do not state a cognizable civil rights claim. A correctional officer’s 8 refusal to seal an envelope, on one occasion, does not rise to the level of a constitutional 9 violation.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NGUYEN LUC VAN, No. 2:20-cv-0502 JAM KJN P 12 Plaintiff, 13 v. ORDER 14 GIVENS, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se and in forma pauperis. Plaintiff seeks relief 18 pursuant to 42 U.S.C. § 1983. On March 16, 2020, plaintiff was granted leave to amend. 19 Following an extension of time, plaintiff filed an amended complaint. Subsequently, plaintiff 20 filed a second amended complaint. As discussed below, plaintiff’s second amended complaint is 21 dismissed with leave to amend. 22 I. Screening Standards 23 The court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 25 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 26 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 27 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 28 //// 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 3 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 6 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 7 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 8 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 9 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 10 1227. 11 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 12 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 13 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 14 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 15 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 16 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 17 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 18 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 19 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 20 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 21 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 22 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 23 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 24 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 25 The Civil Rights Act 26 To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal 27 constitutional or statutory right; and (2) that the violation was committed by a person acting under 28 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 1 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the 2 facts establish the defendant’s personal involvement in the constitutional deprivation or a causal 3 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation. 4 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 5 (9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable 6 for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 7 (2009). In sum, plaintiff must identify the particular person or persons who violated his rights, 8 and set forth specific factual allegations as to how such person violated plaintiff’s rights. 9 II. Plaintiff’s Allegations 10 Plaintiff’s second amended complaint again includes unrelated claims, all based on 11 incidents that took place at California Medical Facility (“CMF”), against Correctional Officer 12 Givens, inmate Clifton Freeman, Warden Jared Lazono, and Dr. Beck. Plaintiff has since been 13 transferred to the California Health Care Facility. 14 In his first claim, marked “excessive force,” plaintiff alleges that on June 18, 2019, 15 defendant Givens refused to let plaintiff seal his confidential legal mail to the Central Intelligence 16 Agency (“CIA”). Plaintiff alleges that he has not received a response from the CIA. Plaintiff 17 claims he sustained “bad hurt” to his “brain left side,” and his “left eye hurt[s].” (ECF No. 15 at 18 3.) 19 Plaintiff’s second claim is not clear. Plaintiff marked “retaliation,” and claims that 20 defendant Givens and Correctional Officer Reece did not respond to plaintiff’s request to move 21 out of the lower bunk because plaintiff got in trouble on August 2, 2019. Plaintiff then alleges 22 that Givens and Reece put inmate Freeman in plaintiff’s cell. Plaintiff claims Freeman tried to 23 harm plaintiff, and Freeman “had order from C/O in prison CMF came into upper bunk 134 for 24 easy murder.” (ECF No. 15 at 4.) Plaintiff sustained trauma to both sides of his head, and “bad 25 hurt” to his “brain left side,” and his “left eye hurt[s].” (ECF No. 15 at 4.) 26 In his third claim, plaintiff marked “threat to safety.” (ECF No. 15 at 5.) After his release 27 from the hospital, plaintiff refused to return to D Dorm because it would be “easy for them to 28 kill” him, so he was put inside the “Willis,” or Segregated Housing Unit (“SHU”). Plaintiff 1 served a 90-day SHU term following a hearing by Warden Lazono. At the second committee, 2 plaintiff did not see the warden. Plaintiff alleges that the warden “lack [sic] duty with inmate. 3 Got trouble very dangerous. By someone try murder I am [sic].” (ECF No. 15 at 5.) Plaintiff 4 sustained “bad hurt” to his “brain left side,” and his “left eye hurt[s].” (ECF No. 15 at 5.) 5 III. Discussion 6 A. First Claim 7 Plaintiff’s allegations do not state a cognizable civil rights claim. A correctional officer’s 8 refusal to seal an envelope, on one occasion, does not rise to the level of a constitutional 9 violation. In addition, although plaintiff marked “excessive force,” there are no factual 10 allegations demonstrating that defendant Givens used force against plaintiff on November 4, 11 2018.1 Plaintiff does not connect defendant Givens’ actions in refusing to seal the envelope to 12 any of the remaining allegations in his pleading, or to the physical injuries alleged. In other 13 words, plaintiff fails to explain how Givens’ alleged refusal to seal the envelope caused plaintiff 14 to suffer injuries to his head. 15 B. Second Claim 16 Plaintiff’s second claim does not allege sufficient facts to support a claim for retaliation. 17 “Prisoners have a First Amendment right to file grievances against prison officials and to 18 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 19 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). A viable retaliation claim in the 20 prison context has five elements: “(1) An assertion that a state actor took some adverse action 21 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action 22 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 23 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 24 (9th Cir. 2005). 25 The second element of a prisoner retaliation claim focuses on causation and motive. See 26 Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his protected 27 1 Plaintiff was previously provided the elements required to state a claim based on the use of 28 excessive force. (ECF No. 4 at 7-8.) 1 conduct was a “‘substantial’ or ‘motivating’ factor behind the defendant’s conduct.” Id. (quoting 2 Sorrano’s Gasco. Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)). Although it can be 3 difficult to establish the motive or intent of the defendant, a plaintiff may rely on circumstantial 4 evidence. Bruce v. Ylst, 351 F.3d 1283, 1288-89 (9th Cir. 2003) (finding that a prisoner 5 establishes a triable issue of fact regarding prison officials’ retaliatory motives by raising issues 6 of suspect timing, evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 7 1997); Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“timing can properly be considered as 8 circumstantial evidence of retaliatory intent”). 9 The third prong can be satisfied by various activities. Filing a grievance is a protected 10 action under the First Amendment. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 11 1989). Similarly, pursuing civil rights litigation is protected under the First Amendment. Rizzo 12 v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). 13 With respect to the fourth prong, “[it] would be unjust to allow a defendant to escape 14 liability for a First Amendment violation merely because an unusually determined plaintiff 15 persists in his protected activity. . . .” Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 16 1300 (9th Cir. 1999). The correct inquiry is to determine whether an official’s acts would chill or 17 silence a person of ordinary firmness from future First Amendment activities. Rhodes, 408 F.3d 18 at 568-69 (citing Mendocino Envtl. Ctr., 192 F.3d at 1300). 19 With respect to the fifth prong, a prisoner must affirmatively show that “the prison 20 authorities’ retaliatory action did not advance legitimate goals of the correctional institution or 21 was not tailored narrowly enough to achieve such goals.” Rizzo, 778 F.2d at 532. 22 Here, plaintiff has failed to address each element required under Rhodes. Importantly, he 23 failed to allege facts addressing causation and motive, required under the second prong, and did 24 not identify his protected conduct (third prong) he claims caused an adverse action. It is unclear 25 whether plaintiff can state a claim for retaliation; he must identify conduct protected under the 26 Constitution that allegedly caused a particular defendant to take an adverse action against 27 plaintiff. 28 //// 1 On the other hand, plaintiff may be attempting to claim that a particular correctional 2 officer failed to protect plaintiff from the harm inflicted by inmate Freeman. As plaintiff was 3 previously informed, in order to state a claim based on a defendant’s alleged failure to protect the 4 plaintiff, the following standards apply. The Eighth Amendment requires prison officials to take 5 reasonable measures to guarantee the safety of prisoners. See Farmer v. Brennan, 511 U.S. 825, 6 832 (1994). In particular, prison officials have an affirmative duty to protect inmates from 7 violence at the hands of other inmates. See id. at 833. To establish a violation of a prison 8 official’s duty to take reasonable steps to protect inmates from physical abuse, the prisoner must 9 establish that prison officials were “deliberately indifferent” to serious threats to the inmate’s 10 safety. Farmer, 511 U.S. at 834. “Mere negligence is not sufficient to establish liability.” Frost v. 11 Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Rather, a plaintiff must set forth facts to show that a 12 defendant knew of, but disregarded, an excessive risk to inmate safety. Farmer, 511 U.S. at 837. 13 That is, “the official must both be aware of facts from which the inference could be drawn that a 14 substantial risk of serious harm exists, and he must also draw the inference.” Id. To prove 15 knowledge of the risk, the prisoner may rely on circumstantial evidence; in fact, the very 16 obviousness of the risk may be sufficient to establish knowledge. Farmer, 511 U.S. at 842. 17 Plaintiff has not alleged facts demonstrating such an Eighth Amendment violation. 18 Either way, plaintiff’s allegation that inmate Freeman had an order from an unidentified 19 correctional officer at CMF to harm plaintiff is insufficient, without more, to demonstrate a 20 constitutional violation. Indeed, plaintiff wholly failed to include any facts as to how he sustained 21 the injuries he claims he suffered. Plaintiff refers to August 22, 2019, but it is unclear if that is 22 the date he alleges inmate Freeman harmed plaintiff. 23 Finally, as plaintiff was previously advised, he cannot state a civil rights claim against 24 another inmate because inmates do not act under color of state law. 42 U.S.C. § 1983. In another 25 appended affidavit, plaintiff claims he is seeking justice for Freeman’s attempt to murder 26 plaintiff, and plaintiff objects that the court is “making artificial proof for Clifton Freeman.” 27 (ECF No. 15 at 13; see also ECF No. 9.) But plaintiff is mistaken. This court is not taking sides 28 or ratifying or supporting inmate Freeman’s alleged wrongful behavior. Rather, this court is 1 required to apply the statute as written by Congress. Under the Civil Rights Act, plaintiff cannot 2 state a cognizable civil rights claim against inmate Freeman because Freeman was not acting 3 under color of state law. Rather, Freeman was a prison inmate, not a correctional officer or other 4 prison staff member. Plaintiff cannot amend his pleading to state a claim against an individual 5 who is not acting under color of state law. Therefore, plaintiff should not name inmate Freeman 6 as a defendant in any amended pleading. 7 C. Claim Three 8 Plaintiff’s third claim, marked “threat to safety,” involves incidents that took place after 9 he returned from the hospital on August 23, 2019. But plaintiff’s allegations as to the warden are 10 also insufficient to state a cognizable failure to protect claim. Simply holding a committee 11 hearing or placing plaintiff in the SHU, without more, does not demonstrate that plaintiff’s 12 constitutional rights were violated. Plaintiff raises no facts suggesting a due process violation 13 during the hearing. Similarly, the warden’s failure to appear at plaintiff’s subsequent committee 14 hearing, standing alone, is insufficient to state a civil rights claim. It is unclear whether plaintiff 15 can amend his pleading to state a cognizable civil rights claim against defendant Lozano, but in 16 an abundance of caution, plaintiff is granted leave to amend. Plaintiff is reminded that he cannot 17 state a cognizable claim against the warden based solely on his supervisory role as warden. 18 D. Insufficient Charging Allegations: Dr. Beck 19 Plaintiff has again named Dr. Beck as a defendant. However, plaintiff includes no 20 charging allegations as to Dr. Beck in any of plaintiff’s three causes of action. Rather, in the 21 relief section of his pleading, plaintiff alleges that Dr. Beck helped cover up an unidentified 22 “CMF felony,” and mentions what an unidentified Captain said at the November 4, 2019 23 committee.2 (ECF No. 15 at 8.) Such statement is unclear because it does not track plaintiff’s 24 2 A “complaint alleging that an officer filed a false report, by itself, fails to state a claim upon 25 which relief can be granted.” Koch v. Austin, 2006 WL 403818, at *5 (E.D. Cal. Feb. 16, 2006), adopted, 2006 WL 842585 (Mar. 28, 2006). A cognizable claim is stated only if there is evidence 26 that the false report was retaliatory, or the inmate is not afforded procedural due process in the 27 hearing on the disciplinary charge. See Pratt v. Rowland, 769 F. Supp. 1128, 1134 (N.D. Cal. 1991) (filing false report states a claim only if retaliatory); Freeman v. Rideout, 808 F.2d 949, 28 953 (2d Cir. 1986) (guards’ “filing of unfounded charges did not give rise to a per se 1 allegations in his three claims for relief. Moreover, if plaintiff is attempting to claim Dr. Beck 2 falsified a report to cover up an alleged falsified rules violation report, preparing a false report 3 about an incident after it occurred cannot subject that individual to liability for the underlying 4 incident. See Villegas v. Schulteis, 2009 WL 3157519, at *6 (E.D. Cal. Sept. 28, 2009) (“While 5 Walker’s actions in submitting a false report and covering up the incident to protect his fellow 6 correctional officers are wrongful, they do not rise to the level of an Eighth Amendment violation. 7 Walker is only liable for his actions or inactions that could be said to have caused the attack to 8 happen. Walker’s actions in filing a false report cannot be said to have caused the attack to 9 happen because by then the attack had already occurred.”); see also Poe v. Huckaby, 2010 WL 10 1663141, at *6 (E.D. Cal. April 22, 2010) (dismissing without leave to amend claim that 11 correctional officers violated the Eighth Amendment by filing a false report regarding an 12 excessive force incident, because the “filing of the false reports occurred after the attacks” and 13 therefore, the “false reports cannot be said to have caused or contributed to the unconstitutional 14 use of excessive force”). In addition, an allegation that a defendant participated in a cover up 15 states a Section 1983 claim only if the cover up deprives the plaintiff of his right of access to 16 courts by causing him to fail to obtain redress for the constitutional violation that was the subject 17 of the cover up. See Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 625 (9th Cir. 18 1988); Rose v. City of Los Angeles, 814 F.Supp. 878, 880-81 (C.D. Cal. 1993). 19 In another appended affidavit, plaintiff alleges that on November 20, 2019, he went to 20 committee, where he was told that the investigation was done, and they were waiting for the 21 district attorney. (ECF No. 15 at 10.) After plaintiff proclaimed his innocence, and stated he was 22 the victim, the committee called Dr. Beck, a licensed psychologist, who told plaintiff the only 23 24 constitutional violation actionable under section 1983”); Sprouse v. Babcock, 870 F.2d 450, 452 25 (9th Cir. 1989) (claim based on falsity of charges, standing alone, did not state a constitutional claim) and Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984) (guards’ fabrication of 26 evidence does not state a claim if procedural protections are provided during disciplinary 27 hearing). Here, plaintiff does not allege that he was deprived of procedural due process at a disciplinary hearing or that defendants filed a false report against plaintiff in retaliation for his 28 exercise of a protected right, and no such inference can be drawn. 1 place they had for plaintiff was EOP.3 Plaintiff asked Dr. Beck for more time to talk to the 2 committee, but Dr. Beck refused and put plaintiff in EOP. Plaintiff states that Dr. Beck tried to 3 harm plaintiff because Dr. Beck “cover[ed] for prison CMF felony.” (ECF No. 15 at 10.) 4 However, such allegations do not demonstrate that Dr. Beck covered up a felony, and fail to state 5 a cognizable civil rights claim. Dr. Beck’s actions in placing plaintiff in EOP, standing alone, do 6 not support an Eighth Amendment violation. 7 E. Exhibits to Pleading 8 Plaintiff appends various affidavits to the pleading, as well as other exhibits. Plaintiff is 9 advised that he must include his specific factual allegations supporting his causes of action in the 10 complaint. The complaint must clearly set forth what facts he alleges support the alleged 11 constitutional violations against each named defendant. The court and the defendants are not 12 required to scour the documents appended to the complaint in an effort to discern what plaintiff is 13 alleging. Plaintiff’s claims must be set forth in short and plain terms, simply, concisely and 14 directly. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting 15 point of a simplified pleading system, which was adopted to focus litigation on the merits of a 16 claim.”); Fed. R. Civ. P. 8. The court (and defendant) should be able to read and understand 17 plaintiff’s pleading within minutes. McHenry v. Renne, 84 F.3d 1172, 1177, 1180 (9th Cir. 1996) 18 (affirming dismissal of § 1983 complaint for violation of Rule 8 after warning); 19 F. Improper Joinder 20 As currently pled, plaintiff’s second amended complaint again asserts claims that are not 21 properly joined under Federal Rule of Civil Procedure 20(a) concerning joinder of claims and 22 defendants. For example, based on the facts alleged in the second amended complaint, plaintiff’s 23 claim that defendant Givens refused to seal an envelope on June 18, 2019, is wholly unrelated to 24 what took place at the committee on November 20, 2019. Rule 20(a) provides that all persons 25
3 “CDCR’s Mental Health Services Delivery System Program Guide provides four levels of 26 mental health care services: Correctional Clinical Case Management System (CCCMS); 27 Enhanced Outpatient (EOP); Mental Health Crisis Bed (MHCB) and inpatient hospital care . . . .” Coleman v. Brown, No. CIV. S-90-520 LKK, 2013 WL 6491529, at *1 (E.D. Cal. Dec. 10, 28 2013). 1 may be joined in one action as defendants if “any right to relief is asserted against them jointly, 2 severally, or in the alternative with respect to or arising out of the same transaction, occurrence, 3 or series of transactions or occurrences” and “any question of law or fact common to all 4 defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). See also George v. Smith, 507 F.3d 5 605, 607 (7th Cir. 2007) (“Unrelated claims against unrelated defendants belong in different 6 suits”). If unrelated claims are improperly joined, the court may dismiss them without prejudice. 7 Fed. R. Civ. P. 21; 7 Alan Wright, Arthur Miller & Mary Kay Kane, Richard Marcus, Federal 8 Practice and Procedure § 1684 (3d ed. 2012); Michaels Building Co. v. Ameritrust Co., 848 F.2d 9 674, 682 (6th Cir. 1988) (affirming dismissing under Rule 21 of certain defendants where claims 10 against those defendants did not arise out of the same transaction or occurrences, as required by 11 Rule 20(a)). Unless plaintiff can allege facts demonstrating his claims arose from the same 12 incident, unrelated claims must be brought in separate actions. 13 IV. Leave to Amend 14 The court finds the allegations in plaintiff’s second amended complaint so vague and 15 conclusory that it is unable to determine whether the current action is frivolous or fails to state a 16 claim for relief. The court has determined that the pleading does not contain a short and plain 17 statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible 18 pleading policy, a complaint must give fair notice and state the elements of the claim plainly and 19 succinctly. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must 20 allege with at least some degree of particularity overt acts which defendants engaged in that 21 support plaintiff’s claim. Id. Because plaintiff has failed to comply with the requirements of Fed. 22 R. Civ. P. 8(a)(2), the second amended complaint must be dismissed. The court, however, grants 23 leave to file a third amended complaint. Plaintiff has had two opportunities to state cognizable 24 civil rights claims, and is cautioned that if his third amended complaint fails to remedy the 25 deficiencies identified above, this action will likely be dismissed. Fed. R. Civ. P. 41(b). 26 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 27 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 28 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the third amended complaint must allege in 1 specific terms how each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 2 (1976). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 3 connection between a defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; 4 May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory 5 allegations of official participation in civil rights violations are not sufficient. Ivey v. Bd. of 6 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 7 Plaintiff may only pursue related claims against related defendants in his third amended 8 complaint.4 Plaintiff is not granted leave to amend to name inmate Clifton Freeman as a 9 defendant. 10 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 11 make plaintiff’s third amended complaint complete. Local Rule 220 requires that an amended 12 complaint be complete in itself without reference to any prior pleading. This requirement exists 13 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 14 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 15 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 16 omitted)). Once plaintiff files a third amended complaint, the original pleading no longer serves 17 any function in the case. Therefore, in an amended complaint, as in an original complaint, each 18 claim and the involvement of each defendant must be sufficiently alleged. 19 V. Notice re E-Filing 20 Plaintiff has now filed two documents styled “affidavit” in which he objects that 21 Correctional Officer Johnson would not mail plaintiff’s document to the court, but sent the
22 4 As discussed above, a plaintiff may properly assert multiple claims against a single defendant. 23 Fed. Rule Civ. P. 18. Also, a plaintiff may join multiple defendants in one action where “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or 24 arising out of the same transaction, occurrence, or series of transactions and occurrences” and “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 25 20(a)(2). Unrelated claims against different defendants must be pursued in separate lawsuits. See George, 507 F.3d at 607. This rule is intended “not only to prevent the sort of morass [a multiple 26 claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing 27 fees -- for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).” 28 George, 507 F.3d at 607. □□□ 2 OVUM □□□ EAINTT IN MUUCH BO Te OY te VE tl
1 | document by E-filing. (ECF Nos. 11, 15 at 18.) Plaintiff is advised that court filings are a matter 2 | of public record, and therefore are not confidential. Also, for those prisons using E-filing, 3 | prisoners are required to send court filings to court by way of the E-filing system. Therefore, the 4 | correctional officer did nothing wrong by requiring plaintiff to submit his court filing through the 5 | E-filing system. Plaintiff should refrain from filing such objections in the future. 6 | VI. Conclusion 7 In accordance with the above, IT IS HEREBY ORDERED that: 8 1. Plaintiff’s second amended complaint is dismissed. 9 2. Within thirty days from the date of this order, plaintiff shall complete the attached 10 | Notice of Amendment and submit the following documents to the court: 11 a. The completed Notice of Amendment; and 12 b. An original Third Amended Complaint. 13 | Plaintiff’s third amended complaint shall comply with the requirements of the Civil Rights Act, 14 | the Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint 15 | must also bear the docket number assigned to this case and must be labeled “Third Amended 16 | Complaint.” 17 Failure to file a third amended complaint in accordance with this order may result in the 18 || dismissal of this action. 19 | Dated: September 3, 2020 Aectl Aharon 2] KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 22 ivan0502.14n2 23 24 25 26 27 28 12
8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NGUYEN LUC VAN, No. 2:20-cv-0502 KJN P 12 Plaintiff, 13 v. NOTICE OF AMENDMENT 14 GIVENS, et al., 15 Defendants. 16
17 Plaintiff hereby submits the following document in compliance with the court’s order 18 filed______________. 19 _____________ Third Amended Complaint 20 DATED:
________________________________ 22 Plaintiff 23 24 25 26 27 28