(PC) Foster v. Unknown ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARTIN LEE FOSTER, No. 2:19-cv-2333-EFB P 12 Plaintiff, 13 v. ORDER 14 SGT. SMOLICH, et al.,1 15 Defendants. 16 17 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.2 His 18 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 4. 19 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 20 Determining that plaintiff may proceed in forma pauperis does not complete the required 21 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 22 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 23 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 24 below, plaintiff’s complaint must be dismissed with leave to amend. 25 26 1 The Clerk of Court is directed to modify the docket for this action to reflect the above caption. 27 2 This case, in which plaintiff is proceeding in propria persona, was referred to the 28 undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 2 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 3 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 4 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 5 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 6 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 7 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 8 relief above the speculative level on the assumption that all of the complaint’s allegations are 9 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 10 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 11 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 12 Under this standard, the court must accept as true the allegations of the complaint in 13 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 14 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 15 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 16 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 17 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 18 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 19 which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)). 20 Plaintiff attempts to assert claims based on four events that occurred while he was 21 incarcerated in the Sacramento County Jail: two unrelated strip searches (occurring on March 28, 22 2018 and September 6, 2019), an October 2, 2019 housing decision, and an October 12, 2019 23 interaction with a female correctional deputy. ECF No. 1. 24 In asserting unrelated claims against different defendants, plaintiff has failed to comply 25 with Federal Rule of Civil Procedure 20(a)(2). Under that rule, multiple defendants may be 26 joined in a single action only where a claim asserted against the defendants arose “out of the same 27 transactions or occurrences” and “any question of law or fact common to all defendants will arise 28 in the action.” See also George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“[u]nrelated claims 1 against different defendants belong in different suits”). Simply put, “Claim A against Defendant 2 1 should not be joined with unrelated Claim B against Defendant 2.” Id. “Unrelated claims 3 against different defendants belong in different suits[.]” Id. 4 Accordingly, if plaintiff wishes to continue this litigation he must file an amended 5 complaint, containing only claims that are related under Federal Rules of Civil Procedure 18-20. 6 If plaintiff wishes to pursue unrelated claims, he must do so in separate actions (e.g., pursue one 7 claim in this action and file a new lawsuit to pursue the second, unrelated claim). 8 Plaintiff may file an amended complaint to attempt to cure the deficiencies noted above. 9 Any amended complaint must identify as a defendant only persons who personally participated in 10 a substantial way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 11 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if 12 he does an act, participates in another’s act or omits to perform an act he is legally required to do 13 that causes the alleged deprivation). 14 Plaintiff may not change the nature of this suit by alleging new, unrelated claims in the 15 amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 16 Any amended complaint must be written or typed so that it so that it is complete in itself 17 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 18 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 19 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 20 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 21 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 22 1967)). 23 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 24 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 25 See E.D. Cal. L.R. 110. 26 Accordingly, IT IS HEREBY ORDERED that: 27 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 4) is granted. 28 ///// 1 2. Plaintiffs complaint is dismissed with leave to amend. If he wishes to proceed with 2 this action, plaintiff must file an amended complaint within 30 days from the date of 3 service of this order addressing the deficiencies noted above. 4 3. Failure to comply with any part of this this order may result in dismissal of this action. 5 | DATED: April 7, 2020. 6 7 “ EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28