(PC) Merced v. Covello ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 JUAN AUTILANO MERCED, JR., Case No. 2:21-cv-01405-WBS-JDP (PC) 10 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA 11 v. PAUPERIS 12 PATRICK COVELLO, et al., ECF No. 2 13 Defendants. SCREENING ORDER THAT PLAINTIFF: 14 (1) STAND BY HIS COMPLAINT SUBJECT TO MY DISMISSAL OF 15 CLAIMS OR PARTIES, OR 16 (2) FILE AN AMENDED COMPLAINT 17 ECF No. 1 18 THIRTY-DAY DEADLINE 19 20 21 Plaintiff has filed a complaint that contains three separate and unrelated claims against 22 multiple defendants. ECF No. 1 at 3-5. Those claims cannot proceed together and, as such, I will 23 give plaintiff an opportunity to file an amended complaint that contains only related claims. If he 24 fails to do so, I will recommend adding or dropping parties and claims. I will also grant his 25 application to proceed in forma pauperis. ECF No. 2 26 Screening and Pleading Requirements 27 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 28 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 1 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 2 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 3 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 4 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 5 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 6 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 7 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 8 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 9 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 10 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 11 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 12 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 13 n.2 (9th Cir. 2006) (en banc) (citations omitted). 14 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 15 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 16 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 17 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 18 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 19 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 20 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 21 Analysis 22 As stated above, plaintiff’s complaint contains three separate and unrelated claims. 23 First, he alleges that defendant Brazil called him “a rat [and] a snitch” in front of other 24 inmates. ECF No. 1 at 3. Plaintiff claims that Brazil did this in retaliation for grievances he had 25 filed. Id. 26 Second, plaintiff alleges that defendant Allen made lewd and derogatory comments 27 toward him because of his tendency to spend time with a transgender inmate. Id. at 4. He claims 28 that Allen then misrepresented their exchange so as to have plaintiff placed in administrative 1 segregation. Id. 2 Third, plaintiff broadly alleges that defendant Covello, the warden of Mule Creek State 3 Prison, has failed to ensure that his subordinates act with integrity and in accordance with prison 4 guidelines. Id. at 5. Plaintiff does not reference any specific incident or problem that Covello 5 knew about but failed to prevent, however. As such, this claim would be too vague to proceed 6 even if it were related to the ones listed above. 7 These three claims bear no apparent factual or legal relationship to each other and so 8 cannot proceed in a single action. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) 9 (“Unrelated claims against different defendants belong in different suits . . . .”). Plaintiff, if he 10 amends his complaint, will need to ensure that all of his claims stem from “the same transaction, 11 occurrence, or series of transactions or occurrences . . . .” Fed. R. Civ. P. 20(a). If he fails to 12 abide by that rule, I may add or drop parties as justice requires. 13 If plaintiff decides to file an amended complaint, the amended complaint will supersede 14 the current complaint. See Lacey v. Maricopa County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en 15 banc). This means that the amended complaint will need to be complete on its face without 16 reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended complaint is 17 filed, the current complaint no longer serves any function. Therefore, in an amended complaint, 18 as in an original complaint, plaintiff will need to assert each claim and allege each defendant’s 19 involvement in sufficient detail. The amended complaint should be titled “Amended Complaint” 20 and refer to the appropriate case number. 21 Accordingly, it is ORDERED that: 22 1. Plaintiff’s application to proceed in forma pauperis, ECF No. 2, is granted. 23 2. Within thirty days from the service of this order, plaintiff must either file an 24 Amended Complaint or advise the court he wishes to stand by his current complaint. If he selects 25 the latter option, I may add or drop parties as necessary to pare the complaint to only related 26 claims. 27 3. Failure to comply with this order may result in the dismissal of this action. 28 4. The Clerk of Court is directed to send plaintiff a complaint form. 1 | ITIS SO ORDERED. 2 / 3 | Dated: _ December 27, 2021 gene Ws JEREMY D. PETERSON 4 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 ll 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28