(PC) Hicks v. Gosai ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DARYL ANTHONY HICKS, Case No. 2:20-cv-02303-JDP (PC) 11 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 12 v. PAUPERIS 13 GOSAI, et al., ECF No. 2 14 Defendants. SCREENING ORDER THAT PLAINTIFF: 15 (1) FILE AN AMENDED COMPLAINT; OR 16 (2) NOTIFY THE COURT THAT HE 17 WISHES TO STAND BY HIS COMPLAINT, SUBJECT TO 18 DISMISSAL OF CLAIMS AND DEFENDANTS CONSISTENT WITH 19 THIS ORDER 20 ECF No. 1 21 SIXTY-DAY DEADLINE 22 23 Plaintiff Daryl Anthony Hicks is a state prisoner proceeding without counsel in this civil 24 rights action brought under 42 U.S.C. § 1983. He has brought three separate and unrelated claims 25 in his complaint. First, he alleges that defendant Pendleton violated his due process and First 26 Amendment rights when she searched his cell and destroyed his legal papers. ECF No. 1 at 3. 27 Second, he alleges that defendant Gosai violated his Eighth Amendment rights by sexually 28 assaulting him during a strip search and violated his due process rights by filing false disciplinary 1 charges against him. Id. at 4. Finally, plaintiff alleges that defendant Miller violated his Eighth 2 Amendment rights by placing him in a cell near a violent inmate. Id. at 5. The violent inmate 3 eventually attacked and injured plaintiff. Id. These claims cannot proceed together; unrelated 4 claims against multiple defendants belong in separate suits. See Federal Rule of Civil Procedure 5 20(a)(2). Plaintiff should file an amended complaint that contains only related claims. If he does 6 not, I will recommend that parties be dropped as justice requires. 7 Plaintiff has also filed an application to proceed in forma pauperis, which, together with 8 his trust fund account statement, makes the required showing and will be granted.1 9 Screening and Pleading Requirements 10 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 11 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 12 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 13 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 14 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 15 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 16 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 17 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 18 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 19 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 20 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 21 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 22 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 23 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 24 n.2 (9th Cir. 2006) (en banc) (citations omitted). 25 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 26 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 27 28 1 Plaintiff will pay the filing fee in accordance with the concurrently filed collection order. 1 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 2 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 3 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 4 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 5 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 6 Analysis 7 As stated above, plaintiff’s complaint contains three unrelated claims that cannot proceed 8 in a single lawsuit. Whether defendant Pendleton violated his First Amendment right to access 9 the courts during a cell search has no relation to whether defendant Gosai sexually assaulted him 10 during a strip search. And neither of the foregoing claims are related to the claim that defendant 11 Miller failed to protect plaintiff from another inmate. Plaintiff, as the master of his complaint, 12 should decide which of his three unrelated claims should proceed in this suit. Misjoinder of 13 parties is not grounds for dismissal of a suit, however. Fed. R. Civ. P. 21. If plaintiff chooses not 14 to select a claim by way of an amended complaint, I may drop parties as justice requires so that 15 this suit may proceed. Id. 16 Should plaintiff choose to amend the complaint, the amended complaint should be brief, 17 Fed. R. Civ. P. 8(a), but must state what actions each named defendant took that deprived plaintiff 18 of constitutional or other federal rights. See Iqbal, 556 U.S. at 678; Jones v. Williams, 297 F.3d 19 930, 934 (9th Cir. 2002). Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim to 20 relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). 21 Plaintiff must allege that each defendant personally participated in the deprivation of his rights. 22 See Jones, 297 F.3d at 934. Plaintiff should note that a short, concise statement in which the 23 allegations are ordered chronologically will help the court identify his claims. Plaintiff should 24 describe how each defendant wronged him, the circumstances surrounding each of the claimed 25 violations, and any harm he suffered. 26 If plaintiff decides to file an amended complaint, the amended complaint will supersede 27 the current complaint. See Lacey v. Maricopa County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en 28 banc). This means that the amended complaint must be complete on its face without reference to 1 | the prior pleading. See E.D. Cal. Local Rule 220. Once an amended complaint is filed, the 2 | current complaint no longer serves any function. Therefore, in an amended complaint, as in an 3 | original complaint, plaintiff must assert each claim and allege each defendant’s involvement in 4 | sufficient detail. The amended complaint should be titled “Amended Complaint” and refer to the 5 || appropriate case number. 6 Accordingly, it is ORDERED that: 7 1. Plaintiffs application to proceed in forma pauperis, ECF No. 2, is granted. 8 2. Within sixty days from the service of this order, plaintiff must either file an 9 | Amended Complaint or advise the court he wishes stand by his current complaint. 10 3. Failure to comply with this order may result in the dismissal of this action. 11 4. The clerk’s office is directed to send plaintiff a complaint form. 12 3 IT IS SO ORDERED. 14 ( 4 ie — Dated: _ January 21, 2021 Q_—— 15 JEREMY D. PETERSON 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28