(PC) Wren v. Mule Creek Prison

District Court, E.D. California·Decided June 29, 2021·No. 2:21-cv-00903·Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY CHARLES WREN, No. 2:21-cv-0903 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 WARDEN MULE CREEK PRISON, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se, with this civil rights action under 42 U.S.C. 18 § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. 19 § 636(b)(1). On June 14, 2021, plaintiff submitted multiple documents to this court, some of 20 which appear to have been filed in the wrong court. The undersigned addresses such filings 21 below, and then screens plaintiff’s complaint, which is dismissed with leave to amend. 22 I. Request to Proceed In Forma Pauperis 23 A. Review of Plaintiff’s Request in This Action 24 Plaintiff filed a motion to proceed in forma pauperis, along with a certified trust account 25 statement, pursuant to 28 U.S.C. § 1915. Such declaration makes the showing required by 28 26 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis (ECF No. 14) is granted. 27 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 28 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 1 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 2 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 3 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 4 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 5 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 6 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 7 § 1915(b)(2). 8 B. Request Filed in Fresno Case 9 Plaintiff’s motion to proceed in forma pauperis did not provide a case number above the 10 title of the document, as is usually provided in the case caption, and was filed in this action, as 11 required by the court’s May 21, 2021 order. However, at the bottom of the form, plaintiff asked 12 the court to note that “this is the same case number as prior civil suit 1:21-cv-0753 SKO (PC), 13 “already paid for.” (ECF No. 14 at 1.) Court records confirm that plaintiff’s civil rights case, 14 Wren v. Gamboa, 1:21-cv-0753 SKO (PC) (E.D. Cal.), is pending in the Fresno Division of this 15 court, and plaintiff was also ordered to file an application to proceed in forma pauperis in that 16 case.1 Therefore, the Clerk of the Court is directed to file a copy of plaintiff’s June 14, 2021 17 application (ECF No. 14), without the instant case’s banner, in Wren v. Gamboa, 1:21-cv-0753 18 SKO (PC) (E.D. Cal.). 19 II. Petition for Writ of Habeas Corpus 20 Although the instant case is a civil rights case, plaintiff also filed a petition for writ of 21 habeas corpus, but included a case number from a Ninth Circuit appeal, and refers to it as his 22 opening brief. (ECF No. 13.) 23 A. Plaintiff’s Conviction 24 In some of plaintiff’s filings, plaintiff claims he is serving a death sentence on a traffic 25 violation, and refers to the San Quentin electric chair. (See, e.g., ECF No. 15 at 1.) Thus, to 26 clarify the record, the undersigned sets forth the information concerning plaintiff’s underlying 27 1 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 28 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 1 conviction. On June 30, 2008, a jury in the Placer County Superior Court found plaintiff guilty of 2 driving under the influence of alcohol and driving with a level of blood alcohol 0.08 percent or 3 greater. Wren v. Yates, No. 2:10-cv-1735 MCE EFB (ECF No. 1); (ECF No. 13 at 40 (copy of 4 California Court of Appeal decision on plaintiff’s direct appeal). The trial court sustained 5 allegations that plaintiff had sustained three prior convictions for driving under the influence, that 6 he committed the present offenses while on bail, that he had a prior prison term, and that his two 7 1991 felony convictions for violating California Penal Code section 288, subdivision (a), were 8 within the meaning of California Penal Code section 667, subdivision (d), subjecting plaintiff to 9 an enhanced sentence under subdivisions (c) and (e) of such statute. No. 2:10-cv-1735 MCE EFB 10 (ECF No. 1); 2:21-cv-0903 KJN P (ECF No. 13 at 40). Plaintiff was sentenced to a state prison 11 term of 27 years to life. No. 2:10-cv-1735 MCE EFB (ECF No. 1); 2:21-cv-0903 KJN P (ECF 12 No. 13 at 50 (abstract of judgment)). The abstract of judgment confirms that plaintiff has not 13 been sentenced to death. (Id.) 14 B. The Petition 15 The petition for writ of habeas corpus filed in this action bears the heading “United States 16 District Court Eastern; District Ninth Circuit Court,” and reflects Case No. 20-16571. (ECF No. 17 13.) Court records show that plaintiff filed an appeal in Wren v. Ndoh, No. 2:19-cv-0251 WBS 18 KJN P (E.D. Cal.), which was filed in the Court of Appeals for the Ninth Circuit, Wren v. Ndoh, 19 No. 20-16571 (9th Cir.). Plaintiff refers to the document as his opening brief “to be filed July 26, 20 2021.” (ECF No. 13 at 1.) However, on June 25, 2021, the appellate court affirmed the district’s 21 court’s decision. No. 20-16571 (ECF No. 114). Moreover, plaintiff appends numerous 22 documents not relevant to the appeal; for example, he includes copies of orders issued in this 23 action as well as Case No. 1:21-cv-0753 SKO (PC), two other civil rights cases that appear to be 24 unrelated to the pending appeal. Review of the Ninth Circuit’s docket also confirms that plaintiff 25 is aware of how to file documents in the Ninth Circuit. For all of those reasons, the undersigned 26 will not order the clerk to file this document in the Ninth Circuit. Rather, the Clerk of the Court 27 is directed to return to plaintiff the original filing (ECF No. 13). The court retains the scanned 28 //// 1 copy of the filing, but disregards it. Any document plaintiff intends to file in his pending appeal 2 should be mailed to the Court of Appeals for the Ninth Circuit. 3 Plaintiff’s Civil Rights Cases 4 Review of plaintiff’s filings reflects that plaintiff is confused as to which cases are 5 currently pending. Plaintiff is advised that he currently has two cases pending in the Eastern 6 District of California: 7 Wren v. Warden, Mule Creek State Prison, No. 2:21-cv-0903 KJM KJN P (E.D. Cal.) 8 (Sacramento Division) (the instant action).2 Filings in this action should bear Case No. 2:21-cv- 9 0903 KJM KJN P, and be mailed to the Sacramento Division for filing. 10 Wren v. Gamboa, No. 1:21-0753 SKO (PC) (E.D. Cal. Fresno Division). Filings for this 11 case should bear Case No. 1:21-0753 SKO (PC), and be mailed to the Fresno Division for filing. 12 Plaintiff’s “Original” Complaint 13 It is unclear why plaintiff filed a copy of his original complaint in Wren v. Gamboa, No.

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27 2 This action was initially filed in Fresno, No. 1:21-cv-0806 HBK (PC), but was transferred to Sacramento on May 19, 2021. (ECF No. 2.) Plaintiff is advised that case No. 1:21-cv-0806 HBK 28 (PC) is closed and should not be referenced in future filings. 1 This includes claims based on legal conclusions that are untenable, like claims of infringement of 2 a legal interest which clearly does not exist, as well as claims based on fanciful factual allegations 3 or fantastic or delusional.3 4 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 5 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 6 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 7 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 8 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 9 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 10 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 11 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 12 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 13 1227. 14 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 15 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 16 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 17 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 18 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 19 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 20 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555. 21 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 23 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal 24 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 25 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the 26 //// 27 3 See Neitzke, 490 U.S. at 327-28; see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 28 1991). 1 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 2 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 3 B. Plaintiff’s Allegations 4 In the caption of his complaint, plaintiff names the warden of Mule Creek Prison and the 5 warden of Avenal State Prison. (ECF No. 1 at 1.) However, in the defendants section of the 6 complaint, plaintiff names “unknown,” Death Chair Executioner at San Quentin State Prison, two 7 Mule Creek guards whose names are illegible, and Captain Rodgers, also a Mule Creek guard. 8 (ECF No. 1 at 2.) 9 Plaintiff’s first claim, plaintiff marks the boxes excessive force by an officer and threat to 10 safety, and then writes in “Electric Chair ‘Death.’” (ECF No. 1 at 3.) Plaintiff claims he was shot 11 by a firearm and taken to San Quentin where he was fed his last meal, taken by force to the 12 electric chair, injected with three syringes, and an electric cap was put on his head. They changed 13 the fuse and threw the switch. Plaintiff was then taken down into a weapon rock crusher to finish 14 his death. Plaintiff then claims that various judges have buried his case, and needs a walk out 15 gate in sunlight. Plaintiff claims he suffered a broken arm, mental anguish, and no medical 16 treatment. (ECF No. 1 at 3.) 17 In his second claim, plaintiff seeks return of monies owed in the amount of $4,000.00. 18 (ECF No. 1 at 4.) 19 In claim three, plaintiff again claims excessive force by an officer. (ECF No. 1 at 5.) This 20 claim is not clear, but he appears to allege that at Mule Creek he was taken to a cement box and 21 burnt by nuke, but plaintiff was not burned as badly as White Eagle. 22 As relief, plaintiff seeks “emergency release out of prison.” (ECF No. 1 at 6.) 23 C. Discussion 24 1. Second Claim 25 Plaintiff’s second claim is not cognizable in federal court. The United States Supreme 26 Court has held that “an unauthorized intentional deprivation of property by a state employee does 27 not constitute a violation of the procedural requirements of the Due Process Clause of the 28 Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” 1 Hudson v. Palmer, 468 U.S. 517, 533 (1984). Thus, where the state provides a meaningful 2 postdeprivation remedy, only authorized, intentional deprivations constitute actionable violations 3 of the Due Process Clause. An authorized deprivation is one carried out pursuant to established 4 state procedures, regulations, or statutes. Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 5 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987). 6 In the instant case, plaintiff has not alleged any facts which suggest that the deprivation 7 was authorized. The California Legislature has provided a remedy for tort claims against public 8 officials in the California Government Code, §§ 900, et seq. Because plaintiff has not attempted 9 to seek redress in the state system, he cannot sue in federal court on the claim that the state 10 deprived him of property without due process of the law. Thus, the court concludes that 11 plaintiff’s second claim must be dismissed as frivolous. See 28 U.S.C. § 1915(e)(2). 12 2. First and Third Claims 13 a. Standards Governing Excessive Force 14 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 15 restraints on prison officials, who may not . . . use excessive physical force against prisoners.” 16 Farmer v. Brennan, 511 U.S. 825, 832 (1994). “[W]henever prison officials stand accused of 17 using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry 18 is. . . whether force was applied in a good-faith effort to maintain or restore discipline, or 19 maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). 20 When determining whether the force was excessive, the court looks to the “extent of injury 21 suffered by an inmate. . . the need for application of force, the relationship between that need and 22 the amount of force used, the threat ‘reasonably perceived by the responsible officials,’ and ‘any 23 efforts made to temper the severity of a forceful response.’” Hudson, 503 U.S. at 7 (quoting 24 Whitley v. Albers, 475 U.S. 312, 321 (1986)). While de minimis uses of physical force generally 25 do not implicate the Eighth Amendment, significant injury need not be evident in the context of 26 an excessive force claim, because “[w]hen prison officials maliciously and sadistically use force 27 to cause harm, contemporary standards of decency always are violated.” Hudson, 503 U.S. at 9. 28 //// 1 b. Standards Governing Failure to Protect Claims 2 The Eighth Amendment requires prison officials to take reasonable measures to guarantee 3 the safety of prisoners. See Farmer, 511 U.S. at 832. In particular, prison officials have an 4 affirmative duty to protect inmates from violence at the hands of other inmates. See id. at 833. 5 To establish a violation of a prison official’s duty to take reasonable steps to protect inmates from 6 physical abuse, the prisoner must establish that prison officials were “deliberately indifferent” to 7 serious threats to the inmate’s safety. Farmer, 511 U.S. at 834. “Mere negligence is not 8 sufficient to establish liability.” Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Rather, a 9 plaintiff must set forth facts to show that a defendant knew of, but disregarded, an excessive risk 10 to inmate safety. Farmer, 511 U.S. at 837. That is, “the official must both be aware of facts from 11 which the inference could be drawn that a substantial risk of serious harm exists, and he must also 12 draw the inference.” Id. To prove knowledge of the risk, the prisoner may rely on circumstantial 13 evidence; in fact, the very obviousness of the risk may be sufficient to establish knowledge. 14 Farmer, 511 U.S. at 842. 15 c. Discussion 16 Plaintiff’s first and third claims allege facts that are implausible, fanciful or delusional. 17 To the extent that certain guards at Mule Creek State Prison may have used excessive force on 18 plaintiff and caused plaintiff injuries, plaintiff must specifically identify the individual 19 responsible for the excessive use of force and address each of the elements required under 20 Hudson (plaintiff’s extent of injury; the need for application of force, the relationship between 21 that need and the amount of force used, the threat reasonably perceived by the defendant, and any 22 efforts defendant made to temper the severity of the forceful response.). Similarly, to the extent 23 plaintiff can identify a defendant who was deliberately indifferent to a substantial risk of harm, 24 plaintiff must establish that such defendant was “deliberately indifferent” to serious threats to 25 plaintiff’s safety. 26 Because plaintiff’s factual allegations fail to meet such governing standards, plaintiff’s 27 complaint must be dismissed. However, plaintiff is granted leave to amend. 28 //// 1 3. Improper Relief 2 Release from custody is not an available remedy for an Eighth Amendment violation. 3 Preiser v. Rodriguez, 411 U.S. 475, 479 (1973) (“Release from custody is not an available 4 remedy under the Civil Rights Act”). Rather, habeas is the “exclusive remedy” for inmates who 5 seek “‘immediate or speedier release’” from confinement. Skinner v. Switzer, 562 U.S. 521, 533- 6 34 (2011) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)). Therefore, plaintiff’s 7 complaint must be dismissed so that plaintiff can identify appropriate relief. 8 4. Improper Joinder 9 Finally, the claims asserted in the complaint are not properly joined under Federal Rule of 10 Civil Procedure 20(a) concerning joinder of claims and defendants. Rule 20(a) provides that all 11 persons may be joined in one action as defendants if “any right to relief is asserted against them 12 jointly, severally, or in the alternative with respect to or arising out of the same transaction, 13 occurrence, or series of transactions or occurrences” and “any question of law or fact common to 14 all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). See also George v. Smith, 507 15 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims against unrelated defendants belong in different 16 suits”). If unrelated claims are improperly joined, the court may dismiss them without prejudice. 17 Fed. R. Civ. P. 21; 7 Alan Wright, Arthur Miller & Mary Kay Kane, Richard Marcus, Federal 18 Practice and Procedure § 1684 (3d ed. 2012); Michaels Building Co. v. Ameritrust Co., 848 F.2d 19 674, 682 (6th Cir. 1988) (affirming dismissing under Rule 21 of certain defendants where claims 20 against those defendants did not arise out of the same transaction or occurrences, as required by 21 Rule 20(a)). 22 D. Leave to Amend 23 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 24 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See e.g., 25 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 26 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 27 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 28 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 1 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 2 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 3 268 (9th Cir. 1982). 4 The amended complaint must contain a caption that identifies each defendant and bears 5 the case number of this case. Fed. R. Civ. P. 10(a). The individuals identified as defendants in 6 the body of the amended complaint must match those set forth in the caption of the complaint. 7 Plaintiff may not change the nature of this suit by alleging new, unrelated claims.4 See 8 Fed. R. Civ. P. 20(a)(2). Plaintiff is cautioned that his continued violation of court orders may 9 result in the involuntary dismissal of this action. Fed. R. Civ. P. 41(b). 10 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 11 make plaintiff’s 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 an amended complaint, the original pleading no longer serves any 17 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim 18 and the involvement of each defendant must be sufficiently alleged. 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 21 ////

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. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 2 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 3 || § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 4 | Director of the California Department of Corrections and Rehabilitation filed concurrently 5 || herewith. 6 3. The Clerk of the Court is directed to file a copy of plaintiffs application to proceed in 7 || forma pauperis (ECF No. 14) in Wren v. Gamboa, 1:21-cv-0753 SKO (PC) (E.D. Cal., Fresno 8 | Div.). 9 4. The Clerk of the Court is directed to return to plaintiff the hard copy of his original 10 || petition (ECF No. 13) filed June 14, 2021. 11 5. The undersigned declines to construe plaintiff's June 14, 2021 complaint as an 12 || amended complaint because it is duplicative, and the Clerk of the Court is directed to strike the 13 || complaint (ECF No. 12). 14 6. Plaintiff's complaint (ECF No. 1) is dismissed. 15 7. Within thirty days from the date of this order, plaintiff shall complete the attached 16 || Notice of Amendment and submit the following documents to the court: 17 a. The completed Notice of Amendment; and 18 b. An original of the Amended Complaint. 19 | Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the 20 || Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 21 || also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 22 Failure to file an amended complaint in accordance with this order may result in the 23 || dismissal of this action. 24 | Dated: June 28, 2021 Foci) Aharon 2% KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 27 28 pven0903.14n 1]

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JEFFREY CHARLES WREN, No. 2:21-cv-0903 KJM KJN P 11 Plaintiff, 12 v. NOTICE OF AMENDMENT 13 WARDEN, MULE CREEK STATE 14 PRISON, et al., 15 Defendants. 16 17 Plaintiff hereby submits the following document in compliance with the court's order 18 filed______________. 19 _____________ Amended Complaint bearing 20 Case No. 2:21-cv-0903 KJM KJN P DATED: 21

22 ________________________________ Plaintiff 23

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(PC) Wren v. Mule Creek Prison, (E.D. Cal. 2021).

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