(PC) Howell v. Camargo ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 Case No. 1:19-cv-00266-SKO (PC) KAREEM J. HOWELL, 11 ORDER REQUIRING PLAINTIFF TO EITHER FILE FIRST AMENDED COMPLAINT OR Plaintiff, 12 NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIM I AGAINST v. 13 DEFENDANTS CAMARGO, MORROW, MUNOZ, RANDOLPH, BARONA, AND SAUCEDO CAMARGO, et al., 14 (Doc. 1) Defendants. 15 TWENTY-ONE (21) DAY DEADLINE 16 17 INTRODUCTION 18 A. Background 19 Plaintiff, Kareem J. Howell, is a state prisoner proceeding pro se and in forma pauperis in 20 this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has stated cognizable claims for 21 retaliation in Claim I against Defendants Camargo, Morrow, Munoz, Randolph, Barona, and 22 Saucedo. However, Plaintiff may be able to correct the deficiencies in his pleading on other 23 claims. Thus, Plaintiff may either file a first amended complaint correcting the deficiencies, or 24 advise the Court that he is willing to proceed only on the claims found cognizable herein. 25 B. Screening Requirement 26 The Court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 1 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 2 frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary 3 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. 4 § 1915(e)(2)(B)(i)-(iii). If an action is dismissed on one of these three bases, a strike is imposed 5 per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed 6 as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has 7 not alleged imminent danger of serious physical injury does not qualify to proceed in forma 8 pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015). 9 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or 10 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. 11 Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of 12 substantive rights, but merely provides a method for vindicating federal rights conferred 13 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). 14 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a 15 right secured by the Constitution or laws of the United States was violated and (2) that the alleged 16 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 17 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). A 18 complaint will be dismissed if it lacks a cognizable legal theory or fails to allege sufficient facts 19 under a cognizable legal theory. See Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 20 (9th Cir. 1990). 21 C. Summary of the Complaint 22 Plaintiff complains of acts that occurred while he was detained at California State Prison 23 in Corcoran (“CSP-Cor”). Plaintiff names Correctional Officers A. Camargo and E. Cerda, 24 Sergeants C. Morrow and A. Barona, and Lieutenants C. Munoz, A. Randolph, and D. Saucedo as 25 defendants in this action, and seeks declaratory and injunctive relief as well as money damages. 26 Plaintiff alleges in Claim I that on January 7, 2019, he filed a lawsuit against Cerda, 27 Randolph, and three other prison employees. The next day, Camargo told Plaintiff that Morrow 28 and Munoz informed Camargo of the lawsuit Plaintiff had filed the previous day and instructed 1 Camargo to write Plaintiff up for refusing to move. Plaintiff objected based on retaliation and 2 asked for a form to file an inmate appeal. Camargo apparently refused to provide the form and 3 told Plaintiff that Plaintiff had no concerns that needed to be redressed since he had done this to 4 himself. On January 17, 2019, Plaintiff received a false disciplinary report stating he had refused 5 to be moved to a different cell. 6 Around 4:00 p.m. that same day, Randolph and Barona told Plaintiff they heard Plaintiff 7 had filed another lawsuit and directed Plaintiff to pack up for a move to be celled with IM Petillo. 8 Plaintiff objected, indicated that was retaliation, and asked for a form to file an appeal. Randolph 9 responded that Plaintiff would get an appeal form if he moved into the cell with IM Petillo. IM 10 Petillo is known to be a violent and active Crip gang member, convicted of murder, who is 11 serving a term of life without the possibility of parole, and weighs at least 200-220 pounds. 12 Plaintiff is not and has never been a member of a gang, was sentenced under the three-strikes law 13 for selling a $20 rock of cocaine, and at 170 pounds is considerably smaller than IM Petillo. 14 Plaintiff alleges that there is no way anyone who reviewed the files would ever approve of 15 Plaintiff being housed with IM Petillo. 16 About an hour later, around 5:00 p.m., Saucedo approached Plaintiff’s cell and informed 17 Plaintiff that he would not get any showers or dinners on third watch unless Plaintiff agreed to be 18 celled with IM Petillo. Plaintiff asked if this was because of his lawsuit, and protested that IM 19 Petillo could easily overpower him. Saucedo informed Plaintiff that if Plaintiff dropped his 20 lawsuit, “all of this will go away.” (Doc. 1, p. 10.) 21 At approximately 9:30 p.m., Cerda was passing out the institutional mail and gave 22 Plaintiff his legal mail. Plaintiff requested a 602 appeal form from Cerda who refused and told 23 Plaintiff no one would give Plaintiff a 602 appeal form because they went in the officers’ 24 personnel files, but that lawsuits did not. Plaintiff bases Claim II on the refusals by Camargo, 25 Randolph, and Cerda to give Plaintiff 602 appeal forms, which he alleges rendered the “vehicle 26 for review ineffective, and unavailable.” (Doc. 1, p. 11.) 27 As discussed in detail below, Plaintiff’s allegations in Claim I state a cognizable claim for 28 retaliation against Defendants Camargo, Morrow, Munoz, Randolph, Barona, and Saucedo on 1 which he should be allowed to proceed. However, Plaintiff does not state a cognizable claim 2 against Cerda in Claim I, nor is Claim II cognizable against any of the named Defendants. Thus, 3 Plaintiff may choose to proceed on the retaliation claims identified in Claim I, or he may attempt 4 to cure the defects in his pleading by filing a first amended complaint. 5 D. Pleading Requirements 6 1. Federal Rule of Civil Procedure 8(a) 7 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 8 exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 9 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain 10 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a). 11 “Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and 12 the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. 13 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 14 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 15 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 16 Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is 17 plausible on its face.’” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual 18 allegations are accepted as true, but legal conclusions are not. Iqbal, at 678; see also Moss v. U.S. 19 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. 20 While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft, 21 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 22 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 23 However, “the liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” 24 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights 25 complaint may not supply essential elements of the claim that were not initially pled,” Bruns v. 26 Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 27 673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, 28 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 1 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, 2 and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 3 plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969. 4 If he chooses to file a first amended complaint, Plaintiff should make it as concise as 5 possible in no more than twenty-five (25) pages. He should state which of his constitutional 6 rights he believes were violated by each Defendant and the facts that support each contention. 7 Plaintiff need not and should not cite legal authority for his claims in a first amended complaint. 8 If Plaintiff files a first amended complaint, his factual allegations will be screened under the legal 9 standards and authorities set forth in this order. 10 2. Linkage and Causation 11 Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or 12 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 13 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 14 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of 15 substantive rights but merely provides a method for vindicating federal rights elsewhere 16 conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) 17 (citing Graham v. Connor, 490 U.S. 386, 393-94 (1989)) (internal quotation marks omitted). To 18 state a claim, Plaintiff must allege facts demonstrating the existence of a link, or causal 19 connection, between each defendant’s actions or omissions and a violation of his federal rights. 20 Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. 21 Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011). 22 Generic identifiers, without surname specificity, do not suffice to place any defendant on 23 notice of a plaintiff’s claims to be able prepare a defense. McHenry v. Renne, 84 F.3d 1172 (9th 24 Cir. 1996). Plaintiff’s allegations must demonstrate that each individual defendant personally 25 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 26 This requires the presentation of factual allegations sufficient to state a plausible claim for relief. 27 Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 28 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 1 construed and to have any doubt resolved in their favor. Hebbe, 627 F.3d at 342. But the mere 2 possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; 3 Moss, 572 F.3d at 969. 4 Plaintiff also appears to seek liability for a number of Defendants who hold supervisory 5 positions. Under section 1983, liability may not be imposed on supervisory personnel for the 6 actions of their employees under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 7 662, 677 (2009). “In a § 1983 suit or a Bivens action - where masters do not answer for the torts 8 of their servants - the term ‘supervisory liability’ is a misnomer.” Id. Therefore, when a named 9 defendant holds a supervisory position, the causal link between him and the claimed 10 constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th 11 Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 12 (1979). 13 DISCUSSION 14 A. Plaintiff's Claims 15 1. Claim I -- Retaliation 16 Plaintiff’s allegations are premised on retaliatory animus due to a lawsuit he filed on 17 January 7, 2018. The First Amendment protects inmates from retaliation for engaging in 18 protected conduct. A retaliation claim has five elements. Waitson v. Carter, 668 F.3d 1108, 19 1114-1115 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.2009). 20 First, the plaintiff must allege that the retaliated-against conduct is protected. Id. The 21 filing of an inmate grievance is protected conduct, Rhodes v. Robinson, 408 F.3d 559, 568 (9th 22 Cir. 2005), as are the rights to speech or to petition the government, Silva v. Di Vittorio, 658 F.3d 23 1090, 1104 (9th Cir. 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also 24 Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 25 (9th Cir. 1995). Second, the plaintiff must show the defendant took adverse action against the 26 plaintiff. Rhodes, at 567. Third, the plaintiff must allege a causal connection between the 27 adverse action and the protected conduct. Waitson, 668 F.3d at 1114. Fourth, the plaintiff’s 28 allegations must show that the nature of the “official’s acts would chill or silence a person of 1 ordinary firmness from future First Amendment activities.” Robinson, 408 F.3d at 568 (internal 2 quotation marks and emphasis omitted). “[A] plaintiff who fails to allege a chilling effect may 3 still state a claim if he alleges he suffered some other harm,” Brodheim, 584 F.3d at 1269, that is 4 “more than minimal,” Robinson, 408 F.3d at 568 n.11. Fifth, the plaintiff must allege “that the 5 prison authorities’ retaliatory action did not advance legitimate goals of the correctional 6 institution. . . .” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985). 7 As set forth above, while Plaintiff need only allege facts sufficient to support a plausible 8 claim for relief, the mere possibility of misconduct is not sufficient, Iqbal, 556 U.S. at 678-79, 9 and the Court is “not required to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 10 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Thus, 11 Plaintiff’s mere allegation that he engaged in protected activity, without knowledge resulting in 12 animus by a defendant, is insufficient to show that Plaintiff’s protected activity was the 13 motivating factor behind a defendant’s actions. 14 a. Camargo, Morrow, and Munoz 15 Plaintiff alleges that on January 7, 2019, he filed a lawsuit against Cerda, Randolph, and 16 three other prison employees. The next day, Camargo told Plaintiff that Morrow and Munoz had 17 informed Camargo of the lawsuit Plaintiff had filed the previous day and instructed Camargo to 18 write Plaintiff up for refusing to move. Plaintiff objected to that as retaliation and asked for a 19 form to file an inmate appeal. Camargo apparently refused to provide the form and told Plaintiff 20 that Plaintiff had no concerns that needed to be redressed since he had done this to himself. On 21 January 17, 2019, Plaintiff received a false disciplinary report that he had refused to be moved to 22 a different cell. These allegations state a cognizable retaliation claim against Camargo, Morrow, 23 and Munoz. 24 b. Randolph and Barona 25 Plaintiff alleges that, around 4:00 p.m. that same day, Randolph and Barona told Plaintiff 26 they heard Plaintiff had filed another lawsuit and directed Plaintiff to pack up for a move to be 27 celled with IM Petillo. Plaintiff objected, indicated that was retaliation, and asked for a form to 28 file an appeal. Randolph responded that Plaintiff would get an appeal form if he moved into the 1 cell with IM Petillo. IM Petillo is known to be a violent and active Crip gang member, convicted 2 of murder, who is serving a term of life without the possibility of parole and weighs at least 200- 3 220 pounds. Plaintiff is not and has never been a member of a gang, was sentenced under the 4 three-strikes law for selling a $20 rock of cocaine, and at 170 pounds is considerably smaller than 5 IM Petillo. Plaintiff alleges that there is no way anyone who reviewed the files would ever 6 approve of Plaintiff being housed with IM Petillo. These allegations state a cognizable retaliation 7 claim against Randolph and Barona. 8 c. Saucedo 9 Plaintiff alleges that, about an hour later, around 5:00 p.m., Saucedo approached 10 Plaintiff’s cell and informed Plaintiff that he would not get any showers or dinners on third watch 11 unless Plaintiff agreed to be celled with IM Petillo. Plaintiff asked if this was all because of his 12 lawsuit, and protested that IM Petillo could easily overpower him. Saucedo told Plaintiff, if 13 Plaintiff dropped his lawsuit, “all of this will go away.” (Doc. 1, p. 10.) These allegations state a 14 cognizable retaliation claim against Saucedo. 15 d. Cerda 16 Plaintiff alleges that, at approximately 9:30 p.m., Cerda was passing out the institutional 17 mail and gave Plaintiff his legal mail. Plaintiff requested a 602 appeal form from Cerda who 18 refused and told Plaintiff no one would give Plaintiff a 602 appeal form because they went in the 19 officers’ personnel files, but that lawsuits did not. These allegations do not state a cognizable 20 retaliation claim against Cerda as Plaintiff fails to show how or why being denied a 602 appeal 21 form “would chill or silence a person of ordinary firmness from future First Amendment 22 activities.” Robinson, 408 F.3d at 568. Plaintiff also fails to state any allegations to show that 23 Cerda’s actions caused Plaintiff to suffer “some other harm,” Brodheim, 584 F.3d at 1269, that is 24 “more than minimal,” Robinson, 408 F.3d at 568 n.11. 25 2. Claim II—Inmate Appeals 26 In Claim II, Plaintiff alleges that, by refusing to provide Plaintiff 602 appeals forms, 27 Camargo, Randolph, and Cerda violated his right to file a grievance. Inmates have a fundamental 28 constitutional right of access to the courts, Lewis v. Casey, 518 U.S. 343, 346 (1996), which 1 extends to established grievance procedures, Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir.1995) 2 overruled on other grounds by Shaw v. Murphy, 532 U.S. 223, 230, n. 2 (2001). The right is 3 merely the right to bring to court a grievance the inmate wishes to present and is limited to direct 4 criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at 354. To bring a 5 claim, the plaintiff must have suffered an actual injury by being shut out of court. Christopher v. 6 Harbury, 536 U.S. 403, 415 (2002); Lewis, 518 U.S. at 351. Plaintiff has failed to state a 7 cognizable claim under the First Amendment because he has not alleged any facts demonstrating 8 that he was shut out of court on a direct criminal appeal, habeas petition, or civil rights action. 9 Similarly, Plaintiff may not pursue a claim for denial of access to the courts based on the 10 failure of staff to provide 602 appeal forms as there is no constitutionally protected right to file 11 inmate grievances/appeals or for them to be accepted and processed, Ramirez v. Galaza, 334 F.3d 12 850, 860 (9th Cir.2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988). 13 Further, “[a prison] grievance procedure is a procedural right only, it does not confer any 14 substantive right upon the inmates.” Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982) 15 accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see also Massey v. Helman, 259 16 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on 17 prisoner). “Hence, it does not give rise to a protected liberty interest requiring the procedural 18 protections envisioned by the Fourteenth Amendment.” Azeez v. DeRobertis, 568 F. Supp. at 10; 19 Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). Actions providing forms for, or in 20 reviewing prisoner’s administrative appeal, generally cannot serve as the basis for liability under 21 a § 1983 action. Buckley, 997 F.2d at 495. 22 Finally, failure to exhaust available administrative remedies is an affirmative defense. 23 Jones v. Bock, 549 U.S. 199, 216 (2007) (“We conclude that failure to exhaust is an affirmative 24 defense under the PLRA, and that inmates are not required to specially plead or demonstrate 25 exhaustion in their complaints.”) Thus, any actions which Plaintiff believes were taken to render 26 the administrative appeals process unavailable to him in an effort to restrict his access to court, 27 does not state a cognizable claim. However, Plaintiff may raise any such incidents in response to 28 a defense motion for summary judgment on the issue of exhaustion of available administrative 1 remedies should this action proceed to that stage. 2 3. Relief 3 a. Declaratory 4 “A declaratory judgment, like other forms of equitable relief, should be granted only as a 5 matter of judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of 6 Lakewood Village, 333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will 7 neither serve a useful purpose in clarifying and settling the legal relations in issue nor terminate 8 the proceedings and afford relief from the uncertainty and controversy faced by the parties.” 9 United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). In the event that this action 10 reaches trial and the jury returns a verdict in favor of Plaintiff, that verdict will be a finding that 11 Plaintiff’s constitutional rights were violated. Accordingly, a declaration that Defendants violated 12 Plaintiff’s rights is unnecessary. 13 b. Injunctive 14 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on 15 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 16 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. 17 Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). “A 18 preliminary injunction is an extraordinary remedy never awarded as a matter of right. In each 19 case, courts must balance the competing claims of injury and must consider the effect on each 20 party of the granting or withholding of the requested relief. In exercising their sound discretion, 21 courts of equity should pay particular regard for the public consequences in employing the 22 extraordinary remedy of injunction.” Id., at 24 (citations and quotations omitted). An injunction 23 may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Id., at 22. 24 Requests for prospective relief are further limited by 18 U.S.C. ' 3626 (a)(1)(A) of the 25 Prison Litigation Reform Act, which requires that the Court find the “relief [sought] is narrowly 26 drawn, extends no further necessary to correct the violation of the Federal right, and is the least 27 intrusive means necessary to correct the violation of the Federal Right.” 28 “An inmate seeking an injunction on the ground that there is a contemporary violation of a 1 nature likely to continue, must adequately plead such a violation; . . .” Farmer v. Brennan, 511 2 U.S. 825, 845-46 (1994) (citations and quotations omitted). However, at the pleading stage, the 3 Court is not in a position to determine questions of a claim’s merits which require submission of 4 evidence as opposed to merely determining whether a claim has been stated. Barrett v. Belleque, 5 544 F.3d 1060 (9th Cir. 2008). It is subsequent to screening, such as in efforts to survive 6 summary judgment, that a plaintiff “must come forward with evidence from which it can be 7 inferred that the defendant-officials were at the time suit was filed, and are at the time of 8 summary judgment, knowingly and unreasonably disregarding an objectively intolerable risk of 9 harm, and that they will continue to do so; and finally to establish eligibility for an injunction, the 10 inmate must demonstrate the continuance of that disregard during the remainder of the litigation 11 and into the future.” Farmer, 511 U.S. at 845-46. Thus, Plaintiff’s request for injunctive relief 12 should not be addressed until such time as evidence is properly submitted and considered. 13 CONCLUSION 14 Plaintiff is given the choice to file a first amended complaint, or to proceed on the 15 retaliation claims found cognizable in Claim I against Defendants Camargo, Morrow, Munoz, 16 Randolph, Barona, and Saucedo, voluntarily dismissing all other claims and Defendants. Plaintiff 17 must either notify the Court of his decision to proceed on these cognizable claims, or file a first 18 amended complaint, or voluntary dismissal of the entire action within twenty-one (21) days of 19 the service of this order. If Plaintiff needs an extension of time to comply with this order, 20 Plaintiff shall file a motion seeking an extension of time no later than twenty-one (21) days from 21 the date of service of this order. 22 If Plaintiff chooses to file a first amended complaint, he must demonstrate how the 23 conditions of which he complains have resulted in a deprivation of Plaintiff’s constitutional 24 rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The first amended complaint must 25 allege in specific terms how each named defendant is involved. There can be no liability under 26 section 1983 unless there is some affirmative link or connection between a defendant’s actions 27 and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 28 1 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 2 A first amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and plain 3 statement must “give the defendant fair notice of what the . . . claim is and the grounds upon 4 which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. 5 Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the “[f]actual allegations must be 6 [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. 127, 555 7 (2007) (citations omitted). 8 Plaintiff is cautioned that an amended complaint supercedes all prior complaints filed in 9 an action. Lacey v. Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 10 (9th Cir. Aug. 29, 2012) (en banc), and must be “complete in itself without reference to the prior 11 or superceded pleading,” Local Rule 220. 12 The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified 13 by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). However, 14 Plaintiff may not change the nature of this suit by adding new, unrelated claims in a first amended 15 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 16 Based on the foregoing, it is HEREBY ORDERED that: 17 1. Plaintiff is granted leave to file a first amended complaint; 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 18 3. Within twenty-one (21) days from the date of service of this order, Plaintiff must 19 either: 20 a. file a first amended complaint curing the deficiencies identified by the Court 21 in this order; 22 b. notify the Court in writing that he does not wish to file a first amended 23 complaint and wishes to proceed only on the retaliation claims found 24 cognizable in Claim I against Defendants Camargo, Morrow, Munoz, 25 Randolph, Barona, and Saucedo, voluntarily dismissing all other claims and 26 Defendants; or 27 c. file a notice of voluntary dismissal of the entire action. 28 1 4. If Plaintiff fails to comply with this order, he will be allowed to proceed only 2 on the claims found cognizable herein and it will be recommended that all 3 other claims and Defendants be dismissed with prejudice. 4 IT IS SO ORDERED. 5 Sheila K. Oberto 6 Dated: August 14, 2019 /s/ . UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28