(PC) Florence v. Beards ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID FLORENCE, No. 2:19-cv-1441-EFB P 12 Plaintiff, 13 v. ORDER 14 J. BEARDS, et al., 15 Defendants. 16 17 Plaintiff proceeds without counsel in this action brought pursuant to 42 U.S.C. § 1983. 18 On April 22, 2020, the court dismissed plaintiff’s initial complaint after finding that it failed to 19 comply with Rule 8 of the Federal Rules of Civil Procedure and impermissibly attempted to join 20 unrelated claims against more than one defendant. ECF No. 9. Plaintiff was given leave to 21 amend and he has now submitted an amended complaint (ECF No. 12) which the court must 22 screen. 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 amended complaint retains the defects which afflicted its predecessor. As 22 before, he has joined several unrelated claims against more than one defendant. He alleges: (1) 23 that defendants J. Macomber and J. Beards were deliberately indifferent to his serious medical 24 needs by denying him a single-man cell; (2) defendants D. Bodenhamer, J. Ma, A. Arya, J. 25 Wedell, P. Sahota, and J. Beards were deliberately indifferent to his serious medical needs by 26 denying him thicker clothing, an orthopedic mattress, a specialized cervical pillow, and effective 27 medication for his chronic pain; (3) defendant B. Johnson violated plaintiff’s Eighth Amendment 28 rights by sexually assaulting him during a disciplinary hearing; (4) defendants D. Fields, J. Lewis, 1 B. Johnson, G. Turner, J. Lynch, J. Macomber, and J. Beards violated his due process rights by 2 issuing him a rules violation report in connection with a prison riot and failing to safeguard his 3 procedural rights in the hearing that followed; and (5) defendants D. Fields, J. Lewis, B. Johnson, 4 T. Viles, G. Turner, J. Lynch, J. Macomber, and J. Beards violated his equal protection rights by 5 filing false rules violation reports against black inmates. ECF No. 12 at 14-23. These claims bear 6 no obvious factual relation to each other and litigating them jointly in a single case would be 7 untenable. 8 Additionally, plaintiff’s complaint is still non-compliant with Rule 8. While he has now 9 undertaken to identify the discrete claims he seeks to pursue, the substantive allegations of the 10 complaint are still difficult to parse. For instance, in his equal protection claim, he alleges that 11 defendants have filed false rules violation reports against black inmates. Id. at 22. He also, 12 however, alleges that “defendants have implemented a policy of allowing a physician who is not 13 an orthopedic surgeon to look at plaintiff . . . .” Id. It is entirely unclear how this allegation is 14 related to an equal protection violation. Moreover, within each claim, it is impossible to 15 apportion responsibility between the numerous listed defendants. 16 The court will afford plaintiff one final opportunity to amend his complaint. 17 III. Leave to Amend 18 Plaintiff will be given leave to amend to address the deficiencies identified above. He is 19 cautioned that any amended complaint must identify as a defendant only persons who personally 20 participated in a substantial way in depriving him of his constitutional rights. Johnson v. Duffy, 21 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional 22 right if he does an act, participates in another’s act or omits to perform an act he is legally 23 required to do that causes the alleged deprivation). Plaintiff may also include any allegations 24 based on state law that are so closely related to his federal allegations that “they form the same 25 case or controversy.” See 28 U.S.C. § 1367(a). 26 The amended complaint must also contain a caption including the names of all defendants. 27 Fed. R. Civ. P. 10(a). 28 ///// Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See MwA 2 AVVO PC Oe PAY OT ME 1 George, 507 F.3d 605 at 607. 2 Any amended complaint must be written or typed so that it so that it is complete in itself 3 | without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 4 || complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 5 || earlier filed complaint no longer serves any function in the case. See Forsyth vy. Humana, 114 6 || F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 7 | being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 8 | 1967)). 9 Any amended complaint should be as concise as possible in fulfilling the above 10 || requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 11 || background which has no bearing on his legal claims. He should also take pains to ensure that his 12 || amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 13 | and organization. Plaintiff should carefully consider whether each of the defendants he names 14 | actually had involvement in the constitutional violations he alleges. A “‘scattershot’” approach in 15 || which plaintiff names dozens of defendants will not be looked upon favorably by the court. 16 Conclusion 17 Accordingly, it is ORDERED that: 18 1. Plaintiff’s amended complaint (ECF No. 12) is dismissed with leave to amend within 19 | 30 days from the date of service of this order; and 20 2. Failure to file an amended complaint that complies with this order may result in the 21 | dismissal of this action for the reasons stated herein. 22 || DATED: September 28, 2020. 24 EDMUND F. BRENNAN 35 UNITED STATES MAGISTRATE JUDGE 26 27 28