(PC) Smith v. Grove ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 COLEMAN KENYATTA SMITH, Jr., No. 2:18-cv-2549 EFB P 12 Plaintiff, 13 v. ORDER 14 J. GROVE, et al., 15 Defendants. 16 17 Plaintiff proceeds without counsel in this action brought pursuant to 42 U.S.C. § 1983. 18 On March 28, 2019, the court dismissed plaintiff’s previous complaints with leave to amend after 19 finding that, for screening purposes, he had failed to state a cognizable claim. ECF No. 9. He has 20 now filed a third amended complaint (ECF No. 15), which is screened below. 21 Screening 22 I. Legal Standards 23 Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 24 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 25 which relief may be granted, or seeks monetary relief against an immune defendant. 26 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 27 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 28 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 1 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 2 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff's obligation to provide the ‘grounds’ of 3 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 4 a cause of action's elements will not do. Factual allegations must be enough to raise a right to 5 relief above the speculative level on the assumption that all of the complaint's allegations are 6 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 7 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 8 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 9 In reviewing a complaint under this standard, the court must accept as true the allegations 10 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 11 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in 12 the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must 13 satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 14 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the 15 pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the 16 grounds upon which it rests.” Twombly, 550 U.S. at 562-563 (2007). 17 II. Analysis 18 The current complaint alleges a single excessive force claim against defendants Grove and 19 RaSheve. Plaintiff claims that, on an unspecified date, the defendants were escorting plaintiff 20 back to his cell from the recreation yard. ECF No. 15 at 2. RaSheve allegedly asked Grove 21 whether he was “ready” and the two threw plaintiff to the ground. Id. Plaintiff claims he was 22 assaulted thereafter, though he does not specify how or for how long. Id. He alleges that the 23 assault stopped when he “screamed to make the defendants stop” and they complied. Id. Plaintiff 24 claims that this type of alleged misconduct is part of a pattern and is likely to reoccur. Id. These 25 allegations lack factual context. Plaintiff has failed, for instance, to allege: (1) when this incident 26 occurred; (2) what, if any, motive the defendants had for assaulting him; and (3) the nature of the 27 assault or how long it lasted. Absent this context, plaintiff’s claim does not rise above the sort of 28 “unadorned, the-defendant-unlawfully-harmed-me accusation” that the Supreme Court has 1 deemed non-compliant with Rule 8 of the Federal Rules of Civil Procedure. Ashcroft v. Iqbal, 2 556 U.S. 662, 678 (2009). And these contextual gaps in the pleading are not new. In its previous 3 screening order, the court informed plaintiff that he “must allege more about the circumstances at 4 issue, i.e., why yard had been recalled, the severity of any threat perceived by the officers, why 5 the officers began to beat plaintiff, and if or when plaintiff struck or resisted the officers.” ECF 6 No. 9 at 3. Plaintiff has not addressed this issue in his current complaint. 7 The court will afford plaintiff one final opportunity to amend and address the foregoing 8 gaps in his pleading. 9 III. Leave to Amend 10 Plaintiff is cautioned that any amended complaint must identify as a defendant only 11 persons who personally participated in a substantial way in depriving him of his constitutional 12 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 13 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 14 perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also 15 include any allegations based on state law that are so closely related to his federal allegations that 16 “they form the same case or controversy.” See 28 U.S.C. § 1367(a). 17 The amended complaint must also contain a caption including the names of all defendants. 18 Fed. R. Civ. P. 10(a). 19 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 20 George, 507 F.3d 605, 607 (7th Cir. 2007). Nor, as mentioned above, may he bring unrelated 21 claims against multiple defendants. Id. 22 Any amended complaint must be written or typed so that it so that it is complete in itself 23 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 24 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 25 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 26 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 27 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 28 1967)). 1 Any amended complaint should be as concise as possible in fulfilling the above 2 || requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 3 || background which has no bearing on his legal claims. He should also take pains to ensure that his 4 || amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 5 || and organization. Plaintiff should carefully consider whether each of the defendants he names 6 | actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 7 | which plaintiff names dozens of defendants will not be looked upon favorably by the court. 8 Conclusion 9 Accordingly, it is ORDERED that: 10 1. Plaintiff’s third amended complaint (ECF No. 15) is DISMISSED with leave to amend 11 || within 30 days from the date of service of this order; and 12 2. Failure to file an amended complaint that complies with this order may result in the 13 || dismissal of this action for the reasons stated herein. 14 | DATED: March 9, 2020. 15 tid, PDEA 16 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28