(PC) Bradford v. Attorney General of California ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMOND ALFORD BRADFORD, No. 2:18-cv-3249-EFB P 12 Plaintiff, 13 v. ORDER 14 ATTORNEY GENERAL OF CALIFORNIA, et al., 15 Defendants. 16 17 The court dismissed plaintiff’s complaint for joinder of unrelated claims.1 ECF No. 13. 18 Plaintiff has since filed an amended complaint, ECF No. 16, which is screened below. 19 I. Screening Requirement and Standards 20 Federal courts must engage in a preliminary screening of cases in which prisoners seek 21 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 22 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 23 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 24 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 25 relief.” Id. § 1915A(b). 26 27 1 Plaintiff is a state prisoner proceeding without counsel in an action brought under Americans with Disabilities Act. This proceeding was referred to this court by Local Rule 302 28 pursuant to 28 U.S.C. § 636(b)(1). 1 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 2 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 3 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 4 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 6 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 7 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 8 U.S. 662, 679 (2009). 9 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 10 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 11 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 12 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 13 678. 14 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 15 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 16 content that allows the court to draw the reasonable inference that the defendant is liable for the 17 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 18 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 19 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 20 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 21 II. Screening Order 22 Plaintiff brings six claims against five attorneys and one correctional officer. ECF No. 16. 23 These claims appear to all be related to three prior actions filed by plaintiff: (1) Bradford v. 24 Marchak, Eastern District Case No. 1:14-cv-01689-LJO-BAM; (2) Bradford v. Ogbuehi, Eastern 25 District Case No. 1:15-cv-01918-AWI-BAM; and (3) Bradford v. Kvichko, Eastern District Case 26 No. 1:16-cv-01077-LJO-SAB. From the records of these actions, of which the court takes 27 judicial notice, it appears that four of the defendant attorneys represented defendants in those 28 ///// 1 actions. The court could not locate a case in which defendant attorney Franklin B. Gordon 2 represented a relevant party. Defendant G. Pickett testified as a witness in Marchak. 3 Plaintiff first alleges that defendants have repeatedly called prison staff to encourage them 4 to attack plaintiff in retaliation for his lawsuits against prison staff and that plaintiff was attacked 5 on May 17, 2018, August 8, 2018, October 6, 2018, and June 5, 2019. ECF No. 16 at 2. To state 6 a viable claim for retaliation, a plaintiff must present facts showing five elements: (1) that a state 7 actor took some adverse action against him (2) because of (3) his protected conduct, (4) that such 8 action chilled his exercise of his First Amendment rights, and (5) that the action did not 9 reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 10 (9th Cir. 2005). The plaintiff need not demonstrate that his speech was actually inhibited or 11 suppressed, but merely that the defendant’s conduct was such as would chill or silence a person of 12 ordinary firmness from future First Amendment activities. Id. at 568-69. 13 Here, plaintiff has alleged only vague facts that are not sufficient to support several 14 requisite elements for his claim against defendants. He has not informed the court of any 15 specifics of any of the four alleged attacks (such as, who committed the attacks, where the attack 16 occurred) or what facts indicate that the attacks were engineered by defendants to retaliate against 17 him. Thus, the claim will be dismissed with leave to amend. 18 Plaintiff next claims that defendants Wilson, Feher, and Gordon lied and presented false 19 evidence from defendant Pickett in Marchak to undermine plaintiff’s claim that his colitis caused 20 him to leave his deposition in that case. ECF No. 16 at 2-3. According to plaintiff, this deceit 21 caused the court to dismiss the case. In fact, the court imposed terminating sanctions against 22 plaintiff in Marchak because of plaintiff’s pervasive abusive litigation tactics. The court provided 23 a comprehensive history of plaintiff’s harassing litigation tactics, directed at defendants, defense 24 attorneys, and the court. Marchak, No. 1:14-cv-01689-LJO-BAM, ECF No. 334. Plaintiff’s 25 refusal to participate in his deposition was a small item on the list of misconduct that justified 26 dismissal of his case. It is clear that the court would have terminated plaintiff’s case as a sanction 27 for the remaining conduct, regardless of whether it had the full story regarding how plaintiff’s 28 colitis was impacting him on the day of his deposition. Plaintiff’s claim baldly misrepresents the 1 facts of Marchak and is patently frivolous. Nietzke v. Williams, 490 U.S. 319, 325, 328 (1989) 2 (describing frivolous factual claims as those that are “fanciful,” “fantastic,” and “delusional”). 3 Plaintiff next claims that defendant Pickett told him in May 2018 to drop his lawsuit 4 (presumably Marchak) and that, if he did, “we will leave you alone.” ECF No. 16 at 3. As 5 plaintiff has not alleged that he was dissuaded from any protected activities by this statement, or 6 that a person of ordinary firmness would have been, the claim must be dismissed with leave to 7 amend. 8 Plaintiff next alleges that defendant Parnell lied to the court in Ogbuehi, causing the court 9 to dismiss the case for failure to exhaust. Id. Again, plaintiff’s claim is a barefaced 10 misrepresentation of what happened in Ogbuehi. That case, like Marchak, was dismissed as a 11 sanction for plaintiff’s harassing and abusive litigation tactics. Ogbuehi, No. 1:15-cv-01918- 12 AWI-BAM, ECF No. 73. The record of Ogbuehi shows that the case was dismissed because of 13 plaintiff’s misconduct, not anything defendant Parnell did. The claim is frivolous and will be 14 dismissed. 15 Plaintiff also claims that defendant Parnell contacted prison guards and that the guards 16 then attacked plaintiff and poured feces all over three boxes of plaintiff’s legal property, causing 17 him to miss deadlines in Marchak, Kvichko, and Ogbuehi. A review of the court’s records reveals 18 that Kvichko, like Marchak and Ogbuehi, was dismissed as a sanction for plaintiff’s harassing 19 conduct against defense counsel and the court (as well as his failure to state a claim). Kvichko, 20 1:16-cv-01077-LJO-SAB, ECF Nos. 49, 51. Moreover, the attachments to the complaint reveal 21 that feces were found not only on plaintiff’s legal property, but also all over his cell, and a 22 correctional officer reported that plaintiff had “smeared feces all over his cell to include his 23 mattress and his property.” ECF No. 16 at 39. Plaintiff’s claim is belied by his own attachment 24 and the record of the three prior cases. As such, the court finds the claim to be frivolous. 25 Lastly, plaintiff claims that Elaine Kvichko and defendant Samson lied to the court in 26 Kvichko that plaintiff’s claim there was frivolous when they knew it was not. But that case would 27 have been dismissed whether or not these defendants represented to the court that plaintiff’s 28 ///// 1 claim was frivolous, due to plaintiff’s abusive litigation practices. The court accordingly finds 2 this claim frivolous and will dismiss it. 3 Plaintiff also raises state-law negligence and fraud claims against defendants. The court 4 declines to exercise jurisdiction over such claims absent a cognizable federal claim. 28 U.S.C. 5 § 1367(c)(3). 6 The court cautions plaintiff that this action is not the proper place to challenge the 7 conclusions of other judges in other cases. Such challenges must be raised in the original cases or 8 by appeal of those cases. Based on the court’s review of plaintiff’s prior actions, the court must 9 also admonish plaintiff that it would view with extreme disfavor any attempt by plaintiff to use 10 this action to continue harassing conduct toward defendants, counsel, and witnesses involved in 11 previous actions. 12 The complaint will therefore be dismissed. The court will grant plaintiff one last 13 opportunity to amend the complaint to state a cognizable federal claim. Any amended complaint 14 must identify as a defendant only persons who personally participated in a substantial way in 15 depriving plaintiff of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 16 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, 17 participates in another’s act or omits to perform an act he is legally required to do that causes the 18 alleged deprivation). 19 It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 20 Plaintiff may not change the nature of this suit by alleging new, unrelated claims in the 21 amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 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 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 2 || Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 3 || See E.D. Cal. L.R. 110. 4} YI. Summary of Order 5 Accordingly, it is ORDERED that the first amended complaint is dismissed with leave to 6 || file a second amended complaint within 30 days from the date of service of this order. The 7 || second amended complaint must bear the docket number assigned to this case and be titled 8 || “Second Amended Complaint.” Failure to comply with this order may result in a 9 || recommendation that this action be dismissed for failure to state a claim and/or failure to 10 | prosecute. If plaintiff files a second amended complaint stating a cognizable claim the court will 11 || proceed with service of process by the United States Marshal. 12 | DATED: April 10, 2020. 13 atu hie Sn A 14 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28