(PC)Barth v. Turner ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHAWN DAMON BARTH, No. 2:19-cv-1012-EFB P 12 Plaintiff, 13 v. ORDER 14 A. TURNER, et al. 15 Defendants. 16 17 Plaintiff proceeds without counsel in this action brought pursuant to 42 U.S.C. § 1983. 18 He has also filed two applications to proceed in forma pauperis (ECF Nos. 11 & 12). 19 Application to Proceed In Forma Pauperis 20 The court has reviewed the first of plaintiff’s applications and finds that it makes the 21 showing required by 28 U.S.C. § 1915(a)(1). Accordingly, plaintiff’s request to proceed in forma 22 pauperis is granted. The second application is denied as moot. 23 Screening 24 I. Legal Standards 25 Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 26 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 27 which relief may be granted, or seeks monetary relief against an immune defendant. 28 ///// 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 In reviewing a complaint under this standard, the court must accept as true the allegations 13 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 14 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in 15 the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must 16 satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 17 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the 18 pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the 19 grounds upon which it rests.” Twombly, 550 U.S. at 562-563 (2007). 20 II. Analysis 21 Plaintiff’s complaint contains at least two claims against multiple defendants that are 22 insufficiently related. 23 First, he alleges that, beginning in February of 2019, “all defendants” intercepted his 24 outgoing legal mail. ECF No. 1 at 3, 13. More specifically, he claims that: 25 (1) Defendant Turner removed certain exhibits from his legal complaints and stated that they could not be copied due to 26 “department operating [manuals].” Id. at 13; 27 (2) Defendant Tomson intercepted mail related to a case filed in federal court and caused the case to be dismissed. Id.; 28 1 (3) Defendant Hurley took three unidentified pieces of outgoing legal mail addressed to a Ramona Davis. Id. at 14; 2 (4) Log records compiled by defendant Phess lacked three pieces of 3 outgoing mail to Ramona Davis. Id. 4 5 Second, plaintiff claims that defendant Turner consistently denied him access to the prison 6 law library. Id. at 3, 14. Specifically, he claims that Tuner declined to provide him with four 7 hours of library time per week and often “docketed” for library access without being called to the 8 library. Id. 9 Plaintiff also alludes to several other, less developed claims. He alleges that, on March 10 18, 2019, he was assaulted by a correctional officer named Romey. Id. at 5. Then, on March 21, 11 2019, plaintiff was allegedly assaulted by Nappen, another correctional officer. Id. Plaintiff 12 appears to allege that these assaults were retaliatory, but he offers little factual context as to either 13 the nature of the assaults or how he knows that they were retaliatory. Plaintiff also separately 14 alleges that various “Doe” defendants “failed to properly [assess] and make housing 15 classifications [for him] and caus[ed] mental anguish [and] physical harm . . . .” Id. at 11. He 16 does not expound on this claim. 17 Plaintiff is advised that he may not bring multiple, unrelated claims against more than one 18 defendant. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“[M]ultiple claims against a 19 single party are fine, but . . . [u]nrelated claims against different defendants belong in different 20 suits . . . .”). Even considering only his two ‘primary’ claims, the question of whether defendant 21 Turner improperly excluded plaintiff from the library is factually unrelated to the question of 22 whether all of the defendants interfered with plaintiff’s legal mail. See Fed. R. Civ. P. 20(a)(2) 23 (multiple defendants may be joined in one action only if the claims against them arise “out of the 24 same transaction, occurrence, or series of transactions or occurrences . . . .”). Plaintiff will be 25 given leave to amend to address this deficiency. 26 III. Leave to Amend 27 Plaintiff is cautioned that any amended complaint must identify as a defendant only 28 persons who personally participated in a substantial way in depriving him of his constitutional 1 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 2 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 3 perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also 4 include any allegations based on state law that are so closely related to his federal allegations that 5 “they form the same case or controversy.” See 28 U.S.C. § 1367(a). 6 The amended complaint must also contain a caption including the names of all defendants. 7 Fed. R. Civ. P. 10(a). 8 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 9 George, 507 F.3d 605 at 607. 10 Any amended complaint must be written or typed so that it so that it is complete in itself 11 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 12 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 13 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 14 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 15 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 16 1967)). 17 Any amended complaint should be as concise as possible in fulfilling the above 18 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 19 background which has no bearing on his legal claims. He should also take pains to ensure that his 20 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 21 and organization. Plaintiff should carefully consider whether each of the defendants he names 22 actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 23 which plaintiff names dozens of defendants will not be looked upon favorably by the court. 24 Conclusion 25 Accordingly, it is ORDERED that 26 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 11) is GRANTED; 27 ///// 28 ///// 1 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 2 || in accordance with the notice to the California Department of Corrections and Rehabilitation filed 3 || concurrently herewith; 4 3. Plaintiff’s application to proceed in forma pauperis (ECF No. 12) is DENIED as 5 || MOOT; 6 4. Plaintiffs complaint (ECF No. 1) is dismissed with leave to amend within 30 days of 7 || service of this order; and 8 5. Failure to file an amended complaint that complies with this order may result in the 9 || dismissal of this action for the reasons stated herein. 10 | DATED: April 6, 2020. tid, PDEA Db EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28