(PC) Uhuru v. Eldridge ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KOHEN DIALLO UHURU, No. 2:19-cv-1119 KJN P 12 Plaintiff, 13 v. ORDER 14 LAURA ELDRIDGE, 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. In the prior screening order, plaintiff was informed that his 19 complaint must be dismissed because he joined, in one pleading, unrelated claims arising from 20 incidents at two different prisons and such claims did not all arise from the same transaction, 21 occurrence, or series of transactions or occurrences. Plaintiff was granted leave to amend. In 22 response, plaintiff filed a 153-page amended complaint naming 27 defendants, and again alleging 23 unrelated claims concerning an involuntary prison transfer, allegedly futile grievance system, 24 retaliation, violations of his right to practice his religion, discrimination on the basis of religion, 25 the denial of unrestricted access to his cell, the denial of lower tier and single cell housing and 26 tinted prescription glasses, alleged sexual assault during a cell search, inappropriate strip 27 searches, verbal harassment, false reports, inadequate health care, and the taking of personal 28 property. Although it appears that plaintiff has now named only defendants employed at the 1 California Health Care Facility (“CHCF”), his amended allegations do not involve the same 2 defendants or arise from the same transaction, occurrence, or series of transactions and 3 occurrences. See Fed. R. Civ. P. 20(a). As discussed below, plaintiff’s amended complaint is 4 dismissed and plaintiff is granted one final opportunity in which to file a second amended 5 complaint raising only related claims against related defendants. 6 I. Screening Standards 7 The court is required to screen complaints brought by prisoners seeking relief against a 8 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 9 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 10 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 11 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 12 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 13 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 14 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 15 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 16 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 17 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 18 Cir. 1989); Franklin, 745 F.2d at 1227. 19 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 20 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 21 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 22 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 23 Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 24 this standard, the court must accept as true the allegations of the complaint in question, Hosp. 25 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 26 most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. 27 McKeithen, 395 U.S. 411, 421 (1969). 28 //// 1 II. Discussion 2 Plaintiff’s filing is confusing because it contains two separate amended complaints, which 3 name different defendants; for example, the initial typewritten amended complaint names 27 4 defendants, and does not bear plaintiff’s signature. (ECF No. 19 at 6-20.) But plaintiff also filed 5 an amended complaint prepared on the court’s form, but only names eight defendants, and is 6 signed by plaintiff, and which appears to be a lightly modified version of his original complaint. 7 (ECF No. 19 at 41-42, 46.) Such disjointed pleading is confusing both to the court and to 8 potential defendants. In addition, the screening of plaintiff’s amended complaint is difficult 9 because plaintiff makes myriad factual allegations and constitutional claims against numerous 10 defendants, arising from events that occurred at various different times. Such a pleading is often 11 characterized as a “shotgun” or “kitchen-sink” complaint “in which a plaintiff brings every 12 conceivable claim against every conceivable defendant.” Gurman v. Metro Hous. & 13 Redevelopment Auth., 842 F. Supp. 2d 1151, 1153 (D. Minn. 2011) (fn. omitted). Such 14 pleadings are difficult to decipher and require inordinate time to identify potentially relevant 15 matters. Because of the nature of plaintiff’s pleading, the undersigned cannot determine whether 16 plaintiff can state a cognizable civil rights claim against a particular defendant. 17 For these reasons, the court finds that plaintiff’s amended complaint fails to meet the 18 “short and plain statement” requirements of Rule 8, Federal Rules of Civil Procedure. See Fed. 19 R. Civ. P. 8(a). The pleading also fails to comply with Rule 20, which authorizes multiple 20 defendants in a single action only if their challenged conduct arises out of common events and 21 reflects common questions of law or fact. See Fed. R. Civ. P. 20(a)(2); see also George v. Smith, 22 507 F.3d 605, 607 (7th Cir. 2007) (“[u]nrelated claims against different defendants belong in 23 different suits.”); cf. Fed. R. Civ. P. 18(a) (plaintiff may join multiple claims only against a single 24 defendant). 25 Accordingly, plaintiff’s amended complaint must be dismissed. Plaintiff is granted one 26 final opportunity in which to file a second amended complaint raising only related claims against 27 related defendants. 28 //// 1 III. Governing Standards 2 Should plaintiff file a second amended complaint, his allegations must be set forth simply, 3 concisely and directly. Fed. R. Civ. P. 8(d)(1); see also McHenry v. Renne, 84 F.3d 1172, 1177 4 (9th Cir. 1996) (setting forth pleading guidelines and examples). In an effort to assist plaintiff in 5 filing his second amended complaint, plaintiff is advised of the following. 6 A. The Civil Rights Act 7 To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal 8 constitutional or statutory right; and (2) that the violation was committed by a person acting under 9 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 10 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the 11 facts establish the defendant’s personal involvement in the constitutional deprivation or a causal 12 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation. 13 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 14 (9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable 15 for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 16 (2009). In sum, plaintiff must identify the particular person or persons who violated his rights. 17 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 18 their employees under a theory of respondeat superior and, therefore, when a named defendant 19 holds a supervisorial position, the causal link between him and the claimed constitutional 20 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) 21 (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 22 438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert. 23 denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of 24 official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 25 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal 26 participation is insufficient). Thus, pleadings that do not set forth facts demonstrating a warden’s 27 personal involvement in an alleged violation fail to state a cognizable civil rights claim. 28 //// 1 B. Potentially Cognizable § 1983 Claims 2 Plaintiff is advised of the following legal standards governing claims raised in his 3 amended complaint. 4 1. First Amendment Free Exercise 5 The Free Exercise Clause of the First Amendment provides that “Congress shall make no 6 law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” U.S. 7 Const. amend I. The United States Court of Appeals for the Ninth Circuit summarizes the 8 application of the Free Exercise Clause in a state prison context as follows: 9 The First Amendment, applicable to state action by incorporation through the Fourteenth Amendment, Everson v. Bd. of Educ. of 10 Ewing Twp., 330 U.S. 1, 8 (1947), “prohibits government from making a law ‘prohibiting the free exercise [of religion].’ ” Cruz v. 11 Beto, 405 U.S. 319, 322 (1972) (per curiam) (alteration in original). The Supreme Court has repeatedly held that prisoners retain the 12 protections of the First Amendment. See, e.g., O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987); Pell v. Procunier, 417 U.S. 817, 13 822 (1974); Cruz, 405 U.S. at 322. A prisoner’s right to freely exercise his religion, however, is limited by institutional objectives 14 and by the loss of freedom concomitant with incarceration. O’Lone, 482 U.S. at 348. 15 16 Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). 17 “To prevail on their Free Exercise claim, plaintiffs must allege facts plausibly showing 18 that the government denied them ‘a reasonable opportunity of pursuing [their] faith comparable to 19 the opportunity afforded fellow prisoners who adhere to conventional religious precepts.’” Id. 20 (alteration in original) (quoting Cruz, 405 U.S. at 322). To implicate the Free Exercise Clause, a 21 prisoner must show that the belief at issue is both “sincerely held” and “rooted in religious 22 belief.” Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994); see also Shakur v. Schriro, 514 F.3d 23 878, 884-85 (9th Cir. 2008) (noting the Supreme Court’s disapproval of the “centrality” test and 24 finding that the “sincerity” test in Malik determines whether the Free Exercise Clause applies). If 25 the inmate makes his initial showing of a sincerely held religious belief, he must establish that 26 prison officials substantially burdened the practice of his religion by preventing him from 27 engaging in conduct that he sincerely believes is consistent with his faith. Shakur, 514 F.3d at 28 884-85. 1 Government action substantially burdens the exercise of religion when the action is 2 “oppressive to a significantly great extent.” Int’l Church of Foursquare Gospel v. City of San 3 Leandro, 673 F.3d 1059, 1067 (9th Cir. 2011) (citation and internal quotation marks omitted). 4 “That is, a ‘substantial burden’ on ‘religious exercise’ must impose a significantly great 5 restriction or onus upon such exercise.” Id. (quoting San Jose Christian College v. City of 6 Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)). “A substantial burden exists where the 7 governmental authority puts substantial pressure on an adherent to modify his behavior and to 8 violate his beliefs.” Id. (citation and internal quotation marks omitted) 9 2. The Religious Land Use and Institutionalized Persons Act of 2000 10 The Religious Land Use and Institutionalized Persons Act (“RLUIPA”) expands rights 11 under the First Amendment’s Free Exercise Clause, mandating that: 12 No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . unless 13 the government demonstrates that imposition of the burden on that person -- 14 (1) is in furtherance of a compelling governmental interest; and 15 (2) is the least restrictive means of furthering that compelling 16 governmental interest. 17 42 U.S.C. § 2000cc-1(a)(1)-(2). 18 Plaintiff must allege facts demonstrating that defendant substantially burdened the 19 exercise of his religious beliefs. Warsoldier v. Woodford, 418 F.3d 989, 994-95 (9th Cir. 2005). 20 In any RLUIPA claim, one must first identify the “religious exercise” allegedly impinged upon, 21 and then must ask whether the prison regulation or action at issue “substantially burdens” that 22 religious exercise. Greene v. Solano County Jail, 513 F.3d 982, 987 (9th Cir. 2008). 23 “RLUIPA does not define ‘substantial burden,’ but [the Ninth Circuit] has held that ‘a 24 substantial burden on religious exercise must impose a significantly great restriction or onus upon 25 such exercise.’” Hartmann, 707 F.3d at 1124-25 (citing San Jose Christian Coll. v. City of 26 Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)). “Generally, the term ‘substantial burden’ in 27 RLUIPA is construed in light of federal Supreme Court and appellate jurisprudence involving the 28 Free Exercise Clause of the First Amendment prior to the Court’s decision in Emp’t Div. Dep’t of 1 Human Res. of Oregon v. Smith, 494 U.S. 872, 878-82 (1990).” Int’l Church of Foursquare 2 Gospel, 673 F.3d at 1067 (citing Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 3 F.3d 978, 988 (9th Cir. 2006)). “In the context of a prisoner’s constitutional challenge to 4 institutional policies, this court has held that a substantial burden occurs ‘where the state . . . 5 denies [an important benefit] because of conduct mandated by religious belief, thereby putting 6 substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” Hartmann, 7 707 F.3d at 1124-25 (citing Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005)). 8 RLUIPA does not authorize money damages against state officials, regardless of whether 9 they are sued in their official or individual capacities. See Jones v. Williams, 791 F.3d 1023, 10 1031 (9th Cir. 2015) (“RLUIPA does not authorize suits for damages against state officials in 11 their individual capacities because individual state officials are not recipients of federal funding 12 and nothing in the statute suggests any congressional intent to hold them individually liable.”). 13 The proper defendant for a RLUIPA claim is the official who could appropriately respond to a 14 court order on injunctive relief should one ever be issued. See id. 15 3. Religious Discrimination 16 Equal protection claims arise when a charge is made that similarly situated individuals are 17 treated differently without a rational relationship to a legitimate state purpose. See San Antonio 18 School District v. Rodriguez, 411 U.S. 1 (1972). Prisoners are protected from invidious 19 discrimination based on race. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Racial 20 segregation is unconstitutional within prisons save for the necessities of prison security and 21 discipline. See Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam). Prisoners are also protected 22 from intentional discrimination on the basis of their religion. See Freeman v. Arpaio, 125 F.3d 23 732, 737 (9th Cir. 1997). Strict scrutiny applies to equal protection claims alleging race-based or 24 religious discrimination (i.e., where the plaintiff is member of a “protected class”); minimal 25 scrutiny applies to all other equal protection claims. See Lee v. City of Los Angeles, 250 F.3d 26 668, 686-67 (9th Cir. 2001). 27 In order to state a § 1983 claim based on a violation of the Equal Protection Clause of the 28 Fourteenth Amendment, a plaintiff must allege that defendants acted with intentional 1 discrimination against plaintiff, or against a class of inmates which included plaintiff, and that 2 such conduct did not relate to a legitimate penological purpose. See Village of Willowbrook v. 3 Olech, 528 U.S. 562, 564 (2000) (holding that equal protection claims may be brought by a “class 4 of one”); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000); Barren v. 5 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 6 4. Medical or Mental Health Care 7 To succeed on an Eighth Amendment claim predicated on the denial of medical or mental 8 health care, a plaintiff must establish that he had a serious medical need and that the defendant’s 9 response to that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 10 2006); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the 11 failure to treat the condition could result in further significant injury or the unnecessary and 12 wanton infliction of pain. Jett, 439 F.3d at 1096. Deliberate indifference may be shown by the 13 denial, delay or intentional interference with medical treatment or by the way in which medical 14 care is provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). 15 To act with deliberate indifference, a prison official must both be aware of facts from 16 which the inference could be drawn that a substantial risk of serious harm exists, and he must also 17 draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant is liable if 18 he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk by failing 19 to take reasonable measures to abate it.” Id. at 847. A physician need not fail to treat an inmate 20 altogether in order to violate that inmate’s Eighth Amendment rights. Ortiz v. City of Imperial, 21 884 F.2d 1312, 1314 (9th Cir. 1989). A failure to competently treat a serious medical condition, 22 even if some treatment is prescribed, may constitute deliberate indifference in a particular case. 23 Id. 24 It is important to differentiate common law negligence claims of malpractice from claims 25 predicated on violations of the Eighth Amendment’s prohibition of cruel and unusual punishment. 26 In asserting the latter, “[m]ere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not 27 support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 28 //// 1 1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976); see also Toguchi v. Chung, 391 2 F.3d 1051, 1057 (9th Cir. 2004). 3 5. Retaliation 4 To state a viable First Amendment retaliation claim, a prisoner must allege five elements: 5 “(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) 6 that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 7 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 8 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Conduct protected by the First 9 Amendment includes communications that are “part of the grievance process.” Brodheim v. Cry, 10 584 F.3d 1262, 1271 n.4 (9th Cir. 2009). If plaintiff intends to assert a retaliation claim, he must 11 specifically identify the protected conduct at issue, name the defendant who took adverse action 12 against him, and plead that the allegedly adverse action was taken “because of” plaintiff’s 13 protected conduct. 14 6. Strip Searches 15 The Eighth Amendment prohibits the imposition of cruel and unusual punishments and 16 “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity and decency.’” 17 Estelle v. Gamble, 429 U.S. 97, 102 (1976) (citation omitted). A prison official violates the 18 Eighth Amendment only when two requirements are met: (1) the objective requirement that the 19 deprivation is “sufficiently serious,” and (2) the subjective requirement that the prison official has 20 a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citation 21 omitted). 22 The United States Supreme Court and the Ninth Circuit have held that routine visual strip 23 searches do not unreasonably infringe on prisoners’ constitutional rights. Florence v. Board. of 24 Chosen Freeholders, 566 U.S. 318, 328 (2012) (upheld, under the Fourth Amendment, a blanket 25 strip search and visual body cavity search for detainees entering detention facilities to detect and 26 deter contraband); Bell v. Wolfish, 441 U.S. 520, 558-60 (1979) (found visual body cavity 27 searches conducted after contact visits used to prevent prisoners’ possession of weapons and 28 contraband, even absent probable cause, reasonable under the Fourth Amendment); Michenfelder 1 v. Sumner, 860 F.2d 328, 333-34 (9th Cir. 1988) (held that routine visual body cavity searches 2 conducted in hallways did not violate the Fourth Amendment after situations where inmates had 3 been presented with the opportunity to obtain contraband or a weapon); Rickman v. Avaniti, 854 4 F.2d 327 (9th Cir. 1988) (upheld prison policy requiring visual strip and body cavity searches 5 every time administrative segregation prisoners left their cells). 6 Physical sexual assault violates the Eighth Amendment. Schwenk v. Hartford, 204 F.3d 7 1187, 1196-97 (2000). On the other hand, claims alleging brief inappropriate touching with 8 sexual overtones have been dismissed as non-cognizable under the Eighth Amendment. See 9 Watison v. Carter, 668 F.3d 1108, 1112-14 (9th Cir. 2012) (finding defendant’s conduct “not 10 objectively harmful enough” and prisoner’s humiliation not severe enough to state an Eighth 11 Amendment claim where defendant officer allegedly entered prisoner’s cell while he was on the 12 toilet, rubbed his thigh against the prisoner’s thigh and began smiling in a sexual way, and left 13 prisoner’s cell laughing). 14 C. Claims Not Cognizable 15 As discussed below, many of plaintiff’s allegations fail to state a cognizable civil rights 16 claim. 17 First, inmates do not have a constitutional right to be housed at a particular facility or 18 institution or to be transferred, or not transferred, from one facility or institution to another. Olim 19 v. Wakinekona, 461 U.S. 238, 244-48 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); 20 Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam). An inmate also does not have 21 a constitutional right to any particular classification. Moody v. Daggett, 429 U.S. 78, 88 n.9 22 (1976); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987). Alleged deprivations of 23 rights arising from prison officials’ housing and classification decisions do not give rise to a 24 federal constitutional claim encompassed by the Fourteenth Amendment. Board of Regents v. 25 Roth, 408 U.S. 564, 569 (1972). State statutes and regulations give rise to an interest protected 26 by the Fourteenth Amendment only where the restraint on a prisoner’s liberty “imposes atypical 27 and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin 28 v. Conner, 515 U.S. 472, 483 (1995). Inmates have no federal constitutional right to particular 1 procedures established by state law. Toussaint v. McCarthy, 801 F.2d 1080, 1096-97 (9th Cir. 2 1986), abrogated in part on other grounds, Sandin, 515 U.S. at 472. 3 Second, prisoners do not have “a separate constitutional entitlement to a specific prison 4 grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. 5 Adams, 855 F.2d 639, 640 (9th Cir. 1988)). (ECF No. 19 at 5.) Thus, plaintiff cannot state a 6 cognizable civil rights claim based on allegations that prison staff impeded, interfered with, or 7 improperly rejected or denied an administrative grievance. 8 Third, the United States Supreme Court has held that “an unauthorized intentional 9 deprivation of property by a state employee does not constitute a violation of the procedural 10 requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful 11 postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). 12 Thus, where the state provides a meaningful postdeprivation remedy, only authorized, intentional 13 deprivations constitute actionable violations of the Due Process Clause. An authorized 14 deprivation is one carried out pursuant to established state procedures, regulations, or statutes. 15 Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 16 832 F.2d 1142, 1149 (9th Cir. 1987). 17 Fourth, a prisoner has no constitutionally guaranteed immunity from being falsely or 18 wrongly accused of conduct which may result in the deprivation of a protected liberty interest. 19 Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); Freeman v. Rideout, 808 F.2d 949, 951 20 (2d Cir. 1986). As long as a prisoner is afforded procedural due process in the disciplinary 21 hearing, allegations of a fabricated charge fail to state a claim under § 1983. Hanrahan v. Lane, 22 747 F.2d 1137, 1140-41 (7th Cir. 1984). 23 Finally, the mere making of harassing comments to a prisoner does not give rise to a 24 federal civil rights claim. See Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (verbal 25 harassment is not cognizable as a constitutional deprivation under § 1983); Oltarzewski v. 26 Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (verbal harassment or abuse is not constitutional 27 deprivation under § 1983), overruled in part on other grounds by Shakur, 514 F.3d at 884-85. 28 //// 1 IV. Leave to Amend 2 As discussed above, plaintiff’s amended claims do not arise from the same transaction, 3 occurrence, or series of transactions and occurrences in which all defendants were involved. 4 Plaintiff’s improper joinder of his many claims cannot be remedied by dismissal of the unrelated 5 claims because his amended pleading is not short and plain, it is unclear whether he can state 6 cognizable claims as to each alleged incident, and it is not clear which claims he wants to pursue 7 in this action, and which claims he will choose to pursue in separate lawsuits. See Fed. R. Civ. P. 8 8(a), 21. In any event, plaintiff is granted leave to file a second amended complaint in which he 9 raises only those claims arising from the same incident and involving the same defendants. 10 As plaintiff was previously informed, he cannot join numerous unrelated claims against 11 multiple defendants in one action. A plaintiff may properly assert multiple claims against a single 12 defendant. Fed. Rule Civ. P. 18. In addition, a plaintiff may join multiple defendants in one 13 action only where “any right to relief is asserted against them jointly, severally, or in the 14 alternative with respect to or arising out of the same transaction, occurrence, or series of 15 transactions and occurrences” (emphasis added) and “any question of law or fact common to all 16 defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). Unrelated claims against different 17 defendants must be pursued in separate lawsuits. See George, 507 F.3d at 607. In other words, 18 joining more than one claim in a single complaint is proper when the claims are against the same 19 defendant, but joining multiple defendants in one complaint is proper only if the claims against 20 them are based on the same facts. This rule is intended “not only to prevent the sort of morass [a 21 multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the 22 required filing fees -- for the Prison Litigation Reform Act limits to 3 the number of frivolous 23 suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. 24 § 1915(g).” George, 507 F.3d at 607; see also Fed. R. Civ. P. 20(a)(2) (joinder of defendants not 25 permitted unless both commonality and same transaction requirements are satisfied). 26 In addition, plaintiff must demonstrate how the conditions about which he complains 27 resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., West, 487 U.S. at 48. Also, 28 the second amended complaint must allege in specific terms how each named defendant is 1 involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no liability under 42 U.S.C. 2 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 3 claimed deprivation. Rizzo v. Goode, 423 U.S. at 371; May v. Enomoto, 633 F.2d 164, 167 (9th 4 Cir. 1980). Furthermore, vague and conclusory allegations of official participation in civil rights 5 violations are not sufficient. Ivey, 673 F.2d at 268. 6 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 7 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 8 heightened pleading standard in cases other than those governed by Rule 9(b).”); Fed. R. Civ. P. 9 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 10 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema 11 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 12 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. Plaintiff must 13 eliminate from his pleading all preambles, introductions, argument, speeches, explanations, 14 stories, griping, vouching, evidence, attempts to negate possible defenses, summaries, and the 15 like. McHenry, 84 F.3d at 1180 (affirming dismissal of § 1983 complaint for violation of Rule 8 16 after warning); see Crawford-El v. Britton, 523 U.S. 574, 597 (1998) (reiterating that “firm 17 application of the Federal Rules of Civil Procedure is fully warranted” in prisoner cases). The 18 court (and defendant) should be able to read and understand plaintiff’s pleading within minutes. 19 McHenry, 84 F.3d at 1177. A long, rambling pleading, including many defendants with 20 unexplained, tenuous or implausible connection to the alleged constitutional injury or joining a 21 series of unrelated claims against many defendants very likely will result in delaying the review 22 required by 28 U.S.C. § 1915 and an order dismissing plaintiff’s action pursuant to Fed. R. Civ. 23 P. 41(b) for violation of these instructions. 24 Also, plaintiff is informed that the court cannot refer to a prior pleading in order to make 25 plaintiff’s second amended complaint complete. Local Rule 220 requires that an amended 26 complaint be complete in itself without reference to any prior pleading. This requirement exists 27 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 28 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 1 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 2 omitted)). Once plaintiff files a second amended complaint, the original pleading no longer 3 serves any function in the case. Therefore, in a second amended complaint, as in an original 4 complaint, each claim and the involvement of each defendant must be sufficiently alleged. 5 Moreover, plaintiff is admonished that failure to comply with this court’s orders may 6 result in the involuntary dismissal of this action as a sanction. Fed. R. Civ. P. 41(b). Plaintiff 7 should review the court’s initial screening order, as well as this order, and file a second amended 8 complaint that complies with such orders. Because this is the court’s second effort to obtain 9 plaintiff’s compliance in terms of proper joinder, plaintiff is required to file his second amended 10 complaint on the court’s complaint form, and should only name as defendants those individuals 11 who violated plaintiff’s civil rights on the basis of the same incident or transaction. Plaintiff may 12 append pages explaining his factual allegations about related defendants, but plaintiff’s second 13 amended complaint shall not exceed 15 pages. Plaintiff is not required to append exhibits or cite 14 legal authorities. 15 V. Court Orders 16 In accordance with the above, IT IS HEREBY ORDERED that: 17 1. Plaintiff’s amended complaint (ECF No. 19) is dismissed. 18 2. Within sixty days from the date of this order, plaintiff shall complete the attached 19 Notice of Amendment and submit the following documents to the court: 20 a. The completed Notice of Amendment; and 21 b. An original and one copy of the Second Amended Complaint. 22 Plaintiff’s second amended complaint shall comply with the requirements of the Civil Rights Act, 23 the Federal Rules of Civil Procedure, and the Local Rules of Practice. The second amended 24 complaint must also bear the docket number assigned to this case, must be labeled “Second 25 Amended Complaint.” Plaintiff’s second amended complaint shall be filed on the court’s 26 complaint form and shall not exceed fifteen pages. 27 //// 28 //// 1 Failure to file a second amended complaint in accordance with the July 18, 2019 order and 2 | the instant order, may result in the dismissal of this action based on plaintiff's failure to comply 3 || with court orders. Fed. R. Civ. P. 41(b). 4 3. The Clerk of the Court is directed to send plaintiff a copy of the court’s form for filing 5 acivil rights complaint by a prisoner. 6 | Dated: March 25, 2020 Fens Arn g KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 9 /uburl 119.14b 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KOHEN DIALLO UHURU, No. 2:19-cv-1119 KJN P 12 Plaintiff, 13 v. NOTICE OF AMENDMENT 14 LAURA ELDRIDGE, et al., 15 Defendants. 16 Plaintiff hereby submits the following document in compliance with the court’s order 17 filed______________. 18 _____________ Second Amended Complaint using the court’s form 19 and not exceeding fifteen (15) pages 20 DATED: 21 ________________________________ 22 Plaintiff 23 24 25 26 27 28