(PC) Howell v. Zayas ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KAREEM J. HOWELL, Case No. 2:20-cv-01929-JDP (PC) 12 Plaintiff, SCREENING ORDER 13 v. ORDER THAT PLAINTIFF: 14 M. ZAYAS, et al., (1)NOTIFY THE COURT THAT HE WILL PROCEED ONLY ON THE 15 Defendants. CLAIMS SANCTIONED BY THIS ORDER ANDWILL VOLUNTARILY 16 DISMISS ALL OTHER DEFENDANTS AND AMEND TO REMOVE ALL 17 OTHER CLAIMS; 18 (2)FILE A FIRST AMENDED COMPLAINT; OR 19 (3)NOTIFY THE COURT THAT HE 20 WISHES TO STAND BYHIS COMPLAINT, SUBJECT TO 21 DISMISSAL OF CLAIMS AND DEFENDANTS CONSISTENT WITH 22 THIS ORDER 23 ECF No. 1 24 THIRTY-DAY DEADLINE 25 26 Plaintiff Kareem J. Howell is a state prisoner proceeding without counsel in this civil 27 rights action brought under 42 U.S.C. § 1983. Plaintiff’s complaint, ECF No.1, is before the 28 court for screening under 28 U.S.C. § 1915A. He alleges that the defendants violated his First 1 Amendment rights by labeling him a ‘snitch’ in retaliationfor his filingofstaff complaints and 2 lawsuits against them. ECF No. 1at 3. Plaintiff claims that defendants’ actions also violated his 3 Eighth Amendment rights. Id. 4 I findthat plaintiff has stated, for screening purposes,cognizable First Amendment 5 retaliationand Eighth Amendment failure to protect claims against defendants Zayas and Konrad. 6 All other defendants and claims will be dismissed with leave to amend for the reasons described 7 below. 8 Additionally, plaintiff has filed an application to proceed in forma pauperis (ECF No. 2) 9 which, together with his trust fund account statement (ECF No. 5), makes the proper showing and 10 will be granted.1 11 SCREENING AND PLEADING REQUIREMENTS 12 Afederal court must screen a prisoner’s complaint that seeks relief against a governmental 13 entity, officer, or employee. See28 U.S.C. § 1915A(a). The court must identify any cognizable 14 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 15 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 16 immune from such relief. See 28 U.S.C. §1915A(b)(1), (2). 17 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 18 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 19 face,”Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 20 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 21 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 22 possibility of misconduct,”the complaint states no claim. Id.at 679. The complaint need not 23 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 24 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 25 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 26 n.2 (9th Cir. 2006) (en banc) (citations omitted). 27 1 Plaintiff must pay the filing fee in accordance with the concurrently filed collection 28 order. 1 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 2 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 3 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 4 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 5 However, “‘aliberal interpretation of a civil rights complaint may not supply essential elements 6 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 7 1257(9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 8 ANALYSIS 9 Plaintiff alleges that, on September 23, 2020, defendant Zayas approached a cell near his 10 and asked the inmate inside whether he wanted to “come out as a witness for the ‘snitch’ Howell 11 over here in cell # 101.” ECF No. 1 at 3. The other inmate replied that he would not be a witness 12 for a ‘snitch’ and that plaintiff would now be targeted for death. Id. As he was leaving, Zayas 13 told plaintiff that he would not be successful in his suit against defendant Konrad. Id. Plaintiff 14 alleges that Zayas was acting at Konrad’s direction. Id. Later that day, defendants Konrad and 15 Zayas approached plaintiff’s cell and, after acknowledging that he had sued them, told him that 16 “you don’t got shit coming.” Id.at 4. These allegations are enough to state a First Amendment 17 retaliation and Eighth Amendment failure to protect claim against both defendants. 18 Plaintiff has not alleged viable claims against the other named defendants—Vitale, 19 Darling, and Spangler. After reviewing the complaint, I can find no allegations against either 20 Vitale or Darling. Spangler is only alleged to have denied one of plaintiff’s grievances. Id.at 3. 21 That is not enough to state a constitutional claim against him. See Ramirez v. Galaza, 334 F.3d 22 850, 860 (9th Cir. 2003) (“Ramirez’s claimed loss of a liberty interest in the processing of his 23 appeals does not satisfy this standard, because inmates lack a separate constitutional entitlement 24 to a specific prison grievance procedure.”). These defendants and the claims against them will be 25 dismissed with leave to amend. 26 LEAVE TO AMEND 27 If he chooses to amend, plaintiff is cautioned that any amended complaint must identify as 28 a defendant only persons who personally participated in a substantial way in depriving him of his 1 constitutional rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff may also 2 include any allegations based on state law that are so closely related to his federal allegations that 3 “they form the same case or controversy.” See28 U.S.C. § 1367(a). The amended complaint 4 must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). Plaintiff 5 may not change the nature of this suit by alleging new, unrelated claims. See Georgev. Smith, 6 507 F.3d605, 607 (7th Cir. 2007). 7 Any amended complaint must be written or typed so that it so that it is complete in itself 8 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 9 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 10 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 11 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 12 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 13 1967)). 14 Theamended complaint should be as concise as possible in fulfilling the above 15 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 16 background which has no bearing on his legal claims. He should also take pains to ensure that his 17 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 18 and organization. Plaintiff should consider whether each of the defendants he names had 19 involvement in the constitutional violations he alleges. A “scattershot” approach in which 20 plaintiff names dozens of defendants will not be looked upon favorably. 21 Accordingly, it is ORDERED that 22 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is GRANTED. 23 2. Plaintiff’s complaint (ECF No. 1) states, for screening purposes, viable First 24 Amendment retaliation and Eighth Amendment failure to protect claims against defendants Zayas 25 and Konrad. 26 3. All other claims and defendants in the complaint are DISMISSED with leave to 27 amend within thirty days of service of this order. 28 1 4. Within thirty days plaintiff shall return the notice below advising whether he elects 2 || to proceed with the cognizable claims identified above or file an amended complaint. If the 3 || former option is selected and returned, the court will enter an order directing service at that time. 4 5. Failure to comply with any part of this this order may result in dismissal for failure 5 || to prosecute. 6 | DATED: October 21, 2020 : Ss: STATE GISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF CALIFORNIA 3 4 KAREEM J. HOWELL, Case No. 2:20-cv-01929-JDP 5 Plaintiff, NOTICE OF ELECTION 6 v. 7 M. ZAYAS, et al., 8 Defendants. 9 10 In accordance with the court’s Screening Order, plaintiff hereby elects to: 11 12 (1) ______ proceed only with the First Amendment retaliation and Eighth Amendment failure to protect claims against defendants Zayas and Konrad. 13 14 OR 15 16 (2) ______ delay serving any defendant and files an amended complaint. 17 18 19 _________________________________ 20 Plaintiff 21 Dated: 22 23 24 25 26 27 28