(PC) Scarzo v. Gruen ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL SCARZO, No. 2:19-cv-00973-CKD-P 12 Plaintiff, 13 v. ORDER 14 KATHLEEN GRUEN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court pursuant to 19 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff’s first amended complaint is now before the 20 court for screening. ECF No. 11. 21 I. Screening Standard 22 As plaintiff was previously advised, this court is required to screen complaints brought by 23 prisoners seeking relief against a governmental entity or officer or employee of a governmental 24 entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the 25 prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon 26 which relief may be granted, or that seek monetary relief from a defendant who is immune from 27 such relief. 28 U.S.C. § 1915A(b)(1), (2). 28 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 1 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 2 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 3 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 4 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 5 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 6 Cir. 1989); Franklin, 745 F.2d at 1227. 7 A complaint, or portion thereof, should only be dismissed for failure to state a claim upon 8 which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in 9 support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 10 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt 11 Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under 12 this standard, the court must accept as true the allegations of the complaint in question, Hospital 13 Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light 14 most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor, Jenkins v. 15 McKeithen, 395 U.S. 411, 421 (1969). 16 II. Allegations in the First Amended Complaint 17 While plaintiff did comply with the court’s order to limit his amended complaint to 20 18 pages in length, the content of it remains largely the same disjointed diatribe that prevented the 19 court from finding any cognizable claim in his original complaint. The only cohesive portion of 20 the complaint concerns a 100-day hunger strike on or about August 2019 while plaintiff was an 21 inmate at High Desert State Prison which he alleges led to his retaliatory transfer to the “B Yard” 22 and ultimately to Pleasant Valley State Prison (“PVSP”). ECF No. 11 at 2-3. Plaintiff further 23 alleges that this transfer to PVSP in his severely weakened state made him more susceptible to 24 contracting Valley Fever. ECF No. 11 at 3. However, none of the individuals named as 25 defendants in the amended complaint were involved in the events concerning plaintiff’s hunger 26 strike or transfer. After describing his hunger strike, the allegations spiral into a cacophony of 27 complaints about widespread judicial corruption reaching as far back as plaintiff’s bail hearing on 28 the charges for which he is currently incarcerated. ECF No. 11 at 3-10. All of the named 1 defendants appear to be connected to this criminal prosecution of plaintiff. 2 By way of relief plaintiff seeks: 1) to recuse the current magistrate judge; 2) to transfer 3 jurisdiction over this matter to a “foreign court of impartial and competent jurisdiction, namely, 4 Japan; 3) to move plaintiff to the protective custody of the Japanese Consulate until such time as 5 his asylum claim can be adjudicated; and, 4) to receive “better health care” from doctors on 6 Consulate grounds. ECF No. 11 at 10. 7 III. Legal Standards 8 First and foremost, plaintiff is once again advised that he may properly assert multiple 9 claims against a single defendant in a civil action. Fed. Rule Civ. P. 18. In addition, plaintiff 10 may join multiple defendants in one action where “any right to relief is asserted against them 11 jointly, severally, or in the alternative with respect to or arising out of the same transaction, 12 occurrence, or series of transactions and occurrences” and “any question of law or fact common 13 to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). However, unrelated claims 14 against different defendants must be pursued in separate lawsuits. See George v. Smith, 507 F.3d 15 605, 607 (7th Cir. 2007). This rule is intended “not only to prevent the sort of morass [a multiple 16 claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing 17 fees—for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals 18 that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).” Id. 19 Most, if not all, of the named defendants in this action appear to be judges or prosecutors 20 connected to the criminal prosecution of plaintiff. The Supreme Court has held that judges acting 21 within the course and scope of their judicial duties are absolutely immune from liability for 22 damages under § 1983. Pierson v. Ray, 386 U.S. 547 (1967). A judge is “subject to liability only 23 when he has acted in the ‘clear absence of all jurisdiction.’” Stump v. Sparkman, 435 U.S. 349, 24 356-7 (1978), quoting Bradley v. Fisher, 13 Wall. 335, 351 (1872). 25 Prosecutors are also absolutely immune from civil suits for damages under § 1983 which 26 challenge activities related to the initiation and presentation of criminal prosecutions. Imbler v. 27 Pachtman, 424 U.S. 409 (1976). Determining whether a prosecutor’s actions are immunized 28 requires a functional analysis. The classification of the challenged acts, not the motivation 1 underlying them, determines whether absolute immunity applies. Ashelman v. Pope, 793 F.2d 2 1072 (9th Cir. 1986) (en banc). The prosecutor’s quasi-judicial functions, rather than 3 administrative or investigative functions, are absolutely immune. Thus, even charges of 4 malicious prosecution, falsification of evidence, coercion of perjured testimony and concealment 5 of exculpatory evidence will be dismissed on grounds of prosecutorial immunity. See Stevens v. 6 Rifkin, 608 F.Supp. 710, 728 (N.D. Cal. 1984). 7 IV. Analysis 8 The court again finds the allegations in plaintiff's first amended complaint so vague and 9 conclusory that it is unable to determine whether the current action is frivolous or fails to state a 10 claim for relief. The court has determined that the amended complaint does not contain a short 11 and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a 12 flexible pleading policy, a complaint must give fair notice and state the elements of the claim 13 plainly and succinctly. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). 14 Plaintiff continues to raise allegations that are unrelated to one another, and it is unduly 15 burdensome to determine which, if any, state a cognizable claim pursuant to 28 U.S.C. § 16 1915A(b). See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996). Additionally, plaintiff 17 must allege with at least some degree of particularity overt acts which defendants engaged in that 18 support plaintiff's claim. Plaintiff fails to link any of the named defendants to the retaliatory 19 transfers following plaintiff’s hunger strike. See Barren v. Harrington, 152 F.3d 1193, 1194-95 20 (9th Cir. 1998) (emphasizing that “[a] plaintiff must allege facts, not simply conclusions, that 21 show that an individual was personally involved in the deprivation of his civil rights.”). For all 22 these reasons, the first amended complaint must be dismissed. The court will, however, grant 23 leave to file a second amended complaint. 24 If plaintiff chooses to file a second amended complaint, plaintiff must demonstrate how 25 the conditions complained of have resulted in a deprivation of plaintiff’s federal constitutional or 26 statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the second amended 27 complaint must allege in specific terms how each named defendant is involved. There can be no 28 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 1 defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. 2 Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 3 1978). Furthermore, vague and conclusory allegations of official participation in civil rights 4 violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 5 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 6 make plaintiff’s second amended complaint complete. Local Rule 220 requires that an amended 7 complaint be complete in itself without reference to any prior pleading. This is because, as a 8 general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 9 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a second amended complaint, the original 10 pleading no longer serves any function in the case. Therefore, in a second amended complaint, as 11 in an original complaint, each claim and the involvement of each defendant must be sufficiently 12 alleged. 13 V. Plain Language Summary for Pro Se Party 14 The following information is meant to explain this order in plain English and is not 15 intended as legal advice. 16 The court has read your complaint and concluded that it does not link any of the named 17 defendants to any of the claims for relief. Additionally, the first amended complaint contains too 18 many unrelated claims against unrelated defendants to proceed in a single action. These problems 19 with your complaint may be fixable so you are being given the chance to file an amended 20 complaint no more than 20 pages in length within 30 days of this order. 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. Plaintiff’s first amended complaint (ECF No. 11) is dismissed; and 23 2. Plaintiff is granted thirty days from the date of service of this order to file a second 24 amended complaint that complies with the requirements of the Civil Rights Act, the Federal Rules 25 of Civil Procedure, and the Local Rules of Practice; the second amended complaint must bear the 26 docket number assigned this case and must be labeled “Second Amended Complaint”; plaintiff 27 must file an original and two copies of the second amended complaint; failure to file a second 28 ///// YEO NEO MMU Re Pa ee PY VI 1 | amended complaint in accordance with this order will result in a recommendation that this action 2 | be dismissed. 3 | Dated: July 6, 2020 f° Lf i, / CAN fu fl. ay 4 CAROLYN K. DELANEY 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 B 12/scar0973.14amd.new.docx 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28