(PC) Foust v. Ogboona ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARL FOUST, No. 2:20-cv-2229-JAM-EFB P 12 Plaintiff, 13 v. ORDER 14 A. OGBOONA, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. For the reasons stated hereafter, plaintiff’s application for leave to proceed in 19 forma pauperis is granted but his complaint (filed and partially re-filed at ECF Nos. 14, 15, 18 at 20 11, and 25), must be dismissed with leave to amend. 21 Application to Proceed in Forma Pauperis 22 The court has reviewed plaintiff’s application and finds that it makes the showing required 23 by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency 24 having custody of plaintiff to collect and forward the appropriate monthly payments for the filing 25 fee as set forth in 28 U.S.C. § 1915(b)(1) and (2). 26 Screening Standards 27 Federal courts must engage in a preliminary screening of cases in which prisoners seek 28 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 1 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 2 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 3 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 4 relief.” Id. § 1915A(b). 5 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 6 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 7 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 8 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 9 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 10 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 11 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 12 U.S. 662, 679 (2009). 13 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 14 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 15 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 16 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 17 678. 18 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 19 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 20 content that allows the court to draw the reasonable inference that the defendant is liable for the 21 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 22 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 23 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 24 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 25 Screening Order 26 Plaintiff alleges that on February 28, 2020, he refused to accept open “legal mail” sent to 27 him from the “Attorney General.” ECF No. 14 at 1. Plaintiff asked the correctional officer who 28 ///// 1 was attempting to deliver the mail – A. Ogboona – for her name. Id. She allegedly refused to tell 2 plaintiff her name and left plaintiff’s mail on the desk of another correctional officer. Id. 3 These allegations cannot survive screening. It does not appear from plaintiff’s allegations 4 that the Attorney General, in sending mail to plaintiff, was acting as counsel on behalf of plaintiff. 5 Indeed, it is highly improbable that was the case. Thus, the mail at issue was not “legal mail” as 6 defined by the courts. “Legal mail” in the context of the First Amendment generally applies to 7 correspondence between a prisoner and his attorney or mail sent from a prisoner to a court. See 8 Wolff v. McDonnell, 418 U.S. 539, 575-76 (1974); Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 9 1996). Significantly, non-legal mail can be properly opened outside of a prisoner’s presence. See 10 Keenan, at 1094. Plaintiff’s claim then, is that he refused to accept his mail and as a result, he did 11 not receive it. This is not a violation of plaintiff’s federal statutory or constitutional rights. 12 Plaintiff’s complaint is dismissed with leave to amended for failure to state a claim upon which 13 relief could be granted. 14 The court recognizes that plaintiff has filed (and in numerous instances, re-filed) various 15 documents related to his prison appeals, medical care, and litigation activities. These filings seem 16 to bear no relation to the allegations in the complaint. Even if they were relevant, they would not 17 be helpful at this time. This case is in the pleading stage and there is no need for to prove his 18 claims with evidence. At this stage, plaintiff is only required to provide notice of his claim 19 through “a short and plain statement.” Fed. R. Civ. P. 8(a). By inundating the court with exhibits 20 and/or evidence, plaintiff burdens the court, confuses the records, and delays his lawsuit. If this 21 action proceeds to a point where submission of evidence is appropriate, for example, summary 22 judgment or trial, plaintiff will have the opportunity to submit necessary evidence. In amending 23 his complaint, plaintiff need only file a first amended complaint (and nothing else), simply stating 24 the facts upon which he alleges a defendant has violated his constitutional rights. 25 Leave to Amend 26 Plaintiff may choose to file an amended complaint which comports with the foregoing 27 screening order. Any amended complaint must identify as a defendant only persons who 28 personally participated in a substantial way in depriving her of a federal constitutional right. 1 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation 2 of a constitutional right if he does an act, participates in another’s act or omits to perform an act 3 he is legally required to do that causes the alleged deprivation). 4 It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 5 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George 6 v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 7 Any amended complaint must be written or typed so that it is complete in itself without 8 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 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 15 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 16 See E.D. Cal. L.R. 110. 17 Conclusion 18 Accordingly, IT IS ORDERED that: 19 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 29) is GRANTED; 20 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in 21 accordance with the notice to the California Department of Corrections and 22 Rehabilitation filed concurrently herewith; 23 3. Plaintiff’s complaint (filed and partially re-filed at ECF Nos. 14, 15, 18 at 11 & 25) is 24 dismissed with leave to amend within 30 days from the date of service of this order; 25 and 26 ///// 27 ///// 28 ///// 1 4. Failure to comply with this order may result in dismissal of this action for the reasons 2 stated herein. 3 | DATED: January 25, 2021. > 4 / EDMUND F. BRENNAN 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28