(PC)Hendon v. DeFazio ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS HENDON, No. 2:19-cv-01177-JAM-CKD-P 12 Plaintiff, 13 v. ORDER 14 J. DEFAZIO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 18 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 19 U.S.C. § 636(b)(1). 20 I. In Forma Pauperis Request 21 Plaintiff requests leave to proceed in forma pauperis. However, court records indicate that 22 plaintiff has been deemed a “Three Strikes” litigant pursuant to 28 U.S.C. § 1915(g).1 See 23 Hendon v. Baroya, No. 1:09-cv-0911-MJS-P (E.D. Cal. July 29, 2010) (identifying three strikes); 24 see also Hendon v. Kulka, No. 2:14-cv-2581-AC-P (E.D. Cal. August 3, 2015) (collecting cases); 25 Hendon v. Kulka, No. 2:14-cv-1171-KJN-P (E.D. Cal. June 9, 2014). The court takes judicial 26 notice of the three cases identified therein as § 1915(g) strikes, all of which were dismissed for 27 1 Judicial notice may be taken of court records. See Valerio v. Boise Cascade Corp., 80 F.R.D. 28 626, 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981). 1 failure to state a claim. All of the cases identified as strikes had become final long before the 2 filing of the instant action. As a result, plaintiff is precluded from proceeding in forma pauperis 3 in this action unless plaintiff is “under imminent danger of serious physical injury.” 28 U.S.C. § 4 1915(g). 5 In his complaint, plaintiff alleges that he “will continue to be irreparably injured” because 6 defendant Defazio told “other guards at other prisons” to beat him up because plaintiff assaulted a 7 guard. ECF No. 1 at 4, 6. Based on the allegations in the complaint which concern the use of 8 excessive force by multiple prison guards at several different prisons between May 2016 and June 9 2019, the court finds that plaintiff’s allegations of imminent harm are sufficiently plausible. 10 Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (emphasizing that the allegations in a 11 pro se complaint are required to be liberally construed). Therefore, the court concludes that 12 plaintiff has credibly alleged imminent danger of serious physical injury pursuant to 28 U.S.C. § 13 1915(g) to be allowed to proceed in forma pauperis in this action. 14 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 15 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 16 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 17 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 18 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 19 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 20 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 21 II. Screening Standard 22 The court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 25 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 26 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 27 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 2 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 3 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 4 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 5 Cir. 1989); Franklin, 745 F.2d at 1227. 6 In order to avoid dismissal for failure to state a claim a complaint must contain more than 7 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 8 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 10 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 11 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 12 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 13 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 14 at 678. When considering whether a complaint states a claim upon which relief can be granted, 15 the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and 16 construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 17 U.S. 232, 236 (1974). 18 III. Allegations in the Complaint 19 At the time that plaintiff filed the complaint, he was confined at California State Prison- 20 Sacrament (“CSP-Sac”). However, the defendants named in this action are employed at several 21 different prisons including CSP-Sac, California State Prison-Corcoran (“Corcoran”), and the 22 California Medical Facility (“CMF”). ECF No. 1 at 2-3. The incidents described in the 23 complaint all involve allegations of the use of excessive force against plaintiff by multiple prison 24 guards. ECF No. 1 at 3-6. They occurred at different prisons at different times ranging from May 25 16, 2016 through May or June 2019. Id. By way of relief, plaintiff seeks compensatory and 26 punitive damages as well as injunctive relief. ECF No. 1 at 7. 27 IV. Legal Standards 28 A plaintiff may properly assert multiple claims against a single defendant in a civil action. 1 Fed. Rule Civ. P. 18. In addition, a plaintiff may join multiple defendants in one action where 2 “any right to relief is asserted against them jointly, severally, or in the alternative with respect to 3 or arising out of the same transaction, occurrence, or series of transactions and occurrences” and 4 “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 5 20(a)(2). However, unrelated claims against different defendants must be pursued in separate 6 lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). This rule is intended “not only 7 to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to 8 ensure that prisoners pay the required filing fees—for the Prison Litigation Reform Act limits to 3 9 the number of frivolous suits or appeals that any prisoner may file without prepayment of the 10 required fees. 28 U.S.C. § 1915(g).” Id. 11 V. Analysis 12 The court has reviewed plaintiff’s complaint and finds that it has improperly joined 13 unrelated claims against multiple defendants in a single civil action. Plaintiff’s complaint must be 14 dismissed. The court will, however, grant leave to file an amended complaint. 15 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 16 complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v. 17 Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in 18 specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. 19 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 20 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 21 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 22 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 23 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 24 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 25 complaint be complete in itself without reference to any prior pleading. This is because, as a 26 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 27 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 28 longer serves any function in the case. Therefore, in an amended complaint, as in an original 1 | complaint, each claim and the involvement of each defendant must be sufficiently alleged. 2 VI. Plain Language Summary for Pro Se Party 3 The following information is meant to explain this order in plain English and is not 4 | intended as legal advice. 5 The court has reviewed the allegations in your complaint and concluded that there are 6 | unrelated claims against multiple defendants. However, this problem may be fixable, so you are 7 | being given the chance to file an amended complaint within 30 days from the date of this order. 8 In accordance with the above, IT IS HEREBY ORDERED that: 9 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is granted. 10 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 11 | shall be collected and paid in accordance with this court’s order to the Director of the California 12 || Department of Corrections and Rehabilitation filed concurrently herewith. 13 3. Plaintiff's complaint is dismissed. 14 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 15 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 16 | Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 17 | number assigned this case and must be labeled “Amended Complaint.” Failure to file an 18 || amended complaint in accordance with this order will result in a recommendation that this action 19 || be dismissed. 20 | Dated: February 27, 2020 Ci ide f | fe 21 CAROLYN K DELANEY 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 | 12/hend1177.screening-joinder.docx 26 27 28