(PC) Lovest v. Larosa ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTWONE LOVEST, No. 2:19-cv-1060-EFB P 12 Plaintiff, 13 v. ORDER 14 RALPH DIAZ, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. The court screened plaintiff’s original complaint and found that he had stated a 19 cognizable retaliation claim against defendant LaRosa, but dismissed the remaining claims with 20 leave to amend. Plaintiff has filed an amended complaint, which is before the court for screening 21 under 28 U.S.C. § 1915A. ECF No. 19.1 22 I. Screening 23 A. Requirement and Standards 24 Federal courts must engage in a preliminary screening of cases in which prisoners seek 25 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 27 1 Plaintiff’s amended complaint appears twice on the docket for reasons that are unclear. 28 ECF Nos. 18, 19. The documents are identical. 1 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 2 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 3 relief.” Id. § 1915A(b). 4 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 5 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 6 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 7 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 8 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 9 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 10 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 11 U.S. 662, 679 (2009). 12 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 13 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 14 action.” Twombly, 550 U.S. at 555-57. In other words, “[t]hreadbare recitals of the elements of a 15 cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678. 16 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 17 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 18 content that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 20 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 21 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 22 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 23 B. Analysis 24 Plaintiff’s amended complaint is nearly identical to his original. He again states a 25 cognizable retaliation claim against defendant LaRosa. And he again asserts that LaRosa 26 behaved in a way toward him that was discriminatory on the basis of plaintiff’s Asian ethnicity. 27 Plaintiff asserts that this conduct violated 42 U.S.C. § 2000. Presumably, plaintiff means 42 28 U.S.C. § 2000a, but the court could locate no authority that state prisons constitute places of 1 public accommodation under that statute. See Nance v. Ryan, No. CV 15-0923-PHX-SMM 2 (DKD), 2015 U.S. Dist. LEXIS 97568, at *9 (D. Ariz. July 27, 2015). 3 To the extent that plaintiff wishes to assert a claim against LaRosa for discrimination in 4 violation of the 14th Amendment’s equal protection clause, plaintiff must allege facts showing 5 that LaRosa acted with an intent or purpose to discriminate against the plaintiff based upon 6 membership in a protected class, and that plaintiff was treated differently from persons similarly 7 situated. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Plaintiff may satisfy this 8 standard by alleging (1) that he was treated differently from others similarly situated; (2) that this 9 unequal treatment was based on an impermissible classification; (3) that LaRosa acted with 10 discriminatory intent in applying this classification; and (4) that he suffered injury as a result of 11 the discriminatory classification. Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). 12 Plaintiffs allegations, if taken as true, show that LaRosa’s discipline of plaintiff was 13 motivated by plaintiff’s expressed intention to grieve LaRosa’s discriminatory statement toward 14 him. Further, it can be inferred from the allegations that LaRosa was also motivated by an intent 15 to discriminate against plaintiff, as the statement that plaintiff should go back where he came 16 from is indicative of discriminatory animus. Liberally construing the complaint, and for the 17 purposes of § 1915A screening only, the court finds that plaintiff has stated a potentially 18 cognizable equal protection claim against LaRosa. 19 Plaintiff names as defendants Ralph Diaz and Joe Lizarraga. The complaint contains no 20 factual allegations against these defendants, so they must be dismissed. 21 In its initial screening order, the court found that plaintiff had stated insufficient facts on 22 which to premise a claim against defendants Knight, Walizer, and Charon. Plaintiff has not 23 altered a single word of his claim against these defendants. Accordingly, it must be dismissed 24 again for the reasons stated in the initial screening order. 25 Plaintiff may proceed on his retaliation and equal protection claims against LaRosa only. 26 Alternatively, the court will provide plaintiff one last opportunity to amend the complaint to 27 attempt to state viable claims against the remaining defendants. 28 ///// 1 If plaintiff elects to file a second amended complaint, that pleading must identify as a 2 defendant only persons who personally participated in a substantial way in depriving him of a 3 federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person 4 subjects another to the deprivation of a constitutional right if he does an act, participates in 5 another’s act or omits to perform an act he is legally required to do that causes the alleged 6 deprivation). 7 Plaintiff may not change the nature of this suit by alleging new, unrelated claims in the 8 amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 9 Any amended complaint must be written or typed so that it so that it is complete in itself 10 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 11 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 12 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 13 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 14 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 15 1967)). 16 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 17 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 18 See E.D. Cal. L.R. 110. 19 II. Order 20 For the foregoing reasons, it is HEREBY ORDERED that: 21 1. Plaintiff’s amended complaint states, for screening purposes, potentially cognizable 22 retaliation and equal protection claims against defendant LaRosa. 23 2. Plaintiff’s remaining claims against all defendants are dismissed with leave to amend 24 within 30 days from the date of service of this order. Plaintiff is not obligated to amend 25 his complaint. 26 ///// 27 ///// 28 ///// wOoOe 2:4 UV VEE BP MMVEUETIOCTI oY PI Ur eer PAY VI 1 3. Within thirty days, plaintiff shall return the notice below advising the court whether he 2 elects to proceed with the cognizable claims or file a second amended complaint. If the 3 former option is selected and returned, the court will enter an order directing service on 4 defendants at that time. 5 4. Failure to comply with any part of this this order may result in dismissal of this action. 6 | DATED: April 15, 2020. 7 Dating : heh bie g EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ANTWONE LOVEST, No. 2:19-cv-01060-MCE-EFB P 11 Plaintiff, 12 v. NOTICE OF INTENT TO PROCEED OR AMEND 13 RALPH DIAZ, et al., 14 Defendants. 15 16 In accordance with the court’s Screening Order, plaintiff hereby elects to: 17 18 19 (1) ______ proceed only with his equal protection and retaliation claims against 20 defendant LaRosa; 21 22 OR 23 (2) ______ delay serving any defendant and file a second amended complaint. 24 25 _________________________________ 26 Plaintiff 27 Dated: 28