(PC) Bradford v. Safy ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 RAYMOND ALFORD BRADFORD, No. 2:21-cv-0637-TLN-EFB P 11 Plaintiff, 12 v. ORDER 13 P. SAFY, 14 Defendant. 15 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. On May 19, 2021, the court recommended that this action be dismissed because 18 plaintiff had failed to either pay the filing fee or seek leave to proceed in forma pauperis. ECF 19 No. 9. On May 26, 2021, after plaintiff notified the court that he had attempted to file a request 20 for leave to proceed in forma pauperis, the court held in abeyance its findings and 21 recommendations for thirty days to allow plaintiff more time to file his request with the court. 22 ECF No. 11. Plaintiff has since timely filed a request for leave to proceed in forma pauperis. 23 ECF No. 14. Accordingly, the May 19, 2021 findings and recommendations that recommended 24 the dismissal of this action are vacated. 25 Application to Proceed In Forma Pauperis 26 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 27 However, court records reflect that on at least three prior occasions, plaintiff has brought actions 28 while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim upon 1 which relief may be granted, meaning that he is a three-strikes litigant for purposes of 28 U.S.C. 2 § 1915(g). See (1) Bradford v. White, No. 2:98-cv-0180-FCD-JFM (E.D. Cal) (dismissed June 3, 3 1999 as barred by the statute of limitations)1; (2) Bradford v. Terhune, No. 1:04-cv-5496-AWI- 4 DLB (E.D. Cal.) (dismissed October 21, 2004 for failure to prosecute after plaintiff failed to file 5 an amended complaint after dismissal for failure to state a claim)2; (3) Bradford v. Grannis, No. 6 2:05-cv-0862-FCD-DAD (E.D. Cal.) (dismissed September 30, 2005 as factually and legally 7 frivolous and for failure to state a claim); and (4) Bradford v. Terhune, No. 1:04-cv-5261-LJO- 8 SMS (E.D. Cal.) (dismissed May 9, 2008 for failure to state a claim). 9 An exception to the three-strikes rule exists “if the complaint makes a plausible allegation 10 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.” 11 Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). Here, plaintiff’s complaint satisfies 12 the imminent danger exception. See ECF No. 1 (alleging he has been denied medical care for 13 severe injuries and illnesses because of his refusal to be tested for COVID-19). Accordingly, 14 plaintiff’s application for leave to proceed in forma pauperis is granted. By separate order, the 15 court directs the agency having custody of plaintiff to collect and forward the appropriate 16 monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2). 17 Screening Standards 18 Federal courts must engage in a preliminary screening of cases in which prisoners seek 19 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 20 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 21 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 22 1 Allegations that are barred by the statute of limitations are subject to dismissal for failure 23 to state a claim. See Jones v. Bock, 549 U.S. 199 (2007). Accordingly, this dismissal qualifies as a strike under 28 U.S.C. § 1915(g). 24 2 The dismissal of this case, although styled as one for failure to prosecute, also qualifies 25 as a strike. See O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008); see also, e.g., Lamon v. 26 Junious, No. 1:09-cv-00484-AWI-SAB, 2014 U.S. Dist. LEXIS 9778, at *9-10 (E.D. Cal. Jan. 27, 2014) (dismissal of appeal for failure to prosecute counted as “strike” where underlying 27 ground for dismissal was that appeal was frivolous); Thomas v. Beutler, No. 2:10-cv-01300 MCE CKD P, 2012 U.S. Dist. LEXIS 159943, at *5-6 (E.D. Cal. Nov. 6, 2012) (same, and citing 28 similar cases). 1 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 2 relief.” Id. § 1915A(b). 3 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 4 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 5 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 6 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 8 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 9 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 10 U.S. 662, 679 (2009). 11 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 12 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 13 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 14 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 15 678. 16 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 17 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 18 content that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 20 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 21 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 22 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 23 Screening Order 24 Plaintiff must amend his complaint to combine all of his allegations into a single 25 document. He has filed a complaint (ECF No. 1) followed by a “supplemental complaint” that 26 does not incorporate the original complaint. See ECF Nos. 1 & 13. Filing separate documents 27 that are intended to be read together as a single complaint, however, is not the proper procedure 28 for amending or supplementing a complaint. To add, omit, or correct information in the operative 1 complaint, plaintiff must file another complaint that is complete within itself. This is because an 2 amended complaint supersedes any earlier filed complaint, and once an amended complaint is 3 filed, the earlier filed complaint no longer serves any function in the case. See Forsyth v. 4 Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, 5 the latter being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th 6 Cir. 1967)). Plaintiff’s complaint (and the intended supplement thereto) is dismissed with leave 7 to amend in accordance with the requirements set forth in this order. 8 Leave to Amend 9 Plaintiff is cautioned that any amended complaint must identify as a defendant only 10 persons who personally participated in a substantial way in depriving him of his constitutional 11 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 12 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 13 perform an act he is legally required to do that causes the alleged deprivation). 14 The amended complaint must also contain a caption including the names of all defendants. 15 Fed. R. Civ. P. 10(a). 16 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 17 George, 507 F.3d at 607. Nor, as he was warned above, may he bring multiple, unrelated claims 18 against more than one defendant. Id. 19 Any amended complaint should be as concise as possible in fulfilling the above 20 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 21 background which has no bearing on his legal claims. He should also take pains to ensure that his 22 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 23 and organization. Plaintiff should carefully consider whether each of the defendants he names 24 actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 25 which plaintiff names dozens of defendants will not be looked upon favorably by the court. 26 Conclusion 27 Accordingly, it is ORDERED that: 28 1. The May 19, 2021 findings and recommendations (ECF No. 9) are VACATED; ] 2. Plaintiffs application to proceed in forma pauperis (ECF No. 14) is GRANTED; 2 3. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 3 || in accordance with the notice to the California Department of Corrections and Rehabilitation filed 4 || concurrently herewith; 5 4. Plaintiff's complaint and “supplement” thereto (ECF Nos. 1 & 13) are 6 || DISMISSED with leave to amend within 30 days from the date of service of this order; and 7 5. Failure to comply with any part of this this order may result in dismissal of this 8 | action. 9 | DATED: August 20, 2021. Lon by / A Z g 10 EDMUND F. BRENNAN 1 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28