(PC) McClintock v. Valencia ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN SCOTT McCLINTOCK, No. 2:21-cv-0850-TLN-EFB P 12 Plaintiff, 13 v. ORDER 14 G. VALENCIA, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. On August 26, 2021, the court dismissed plaintiff’s amended complaint with 19 leave to amend. ECF No. 15. Plaintiff has filed a second amended complaint (ECF No. 16) 20 which the court must now screen.1 21 ///// 22 ///// 23 ///// 24 ///// 25 1 Federal courts must engage in a preliminary screening of cases in which prisoners seek 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 27 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 28 relief.” Id. § 1915A(b). 1 The second amended complaint is grouped into three sets of allegations, titled Claims I, II, 2 and III. Liberally construed, the allegations in “Claim I” are sufficient to state a potentially 3 cognizable claim against defendants L. Cantu and G. Valencia for retaliating against plaintiff in 4 violation of the First Amendment by fabricating and pursuing false charges against plaintiff 5 because of a lawsuit plaintiff filed in 2018. See ECF No. 16 at 2-8. None of the complaint’s 6 remaining allegations are sufficient to survive screening. 7 Plaintiff purports to bring “Claim I” against an additional sixteen defendants. However, 8 plaintiff’s bare accusations as to those defendants (e.g., that various defendants oversaw the 9 “sham” investigation, had a “duty to . . . the truth,” or had a “duty to intervene,” see id. at 6-7) do 10 not satisfy the elements of a retaliation claim. A retaliation claim requires facts showing that a 11 defendant was aware of plaintiff’s First Amendment protected conduct and that such conduct was 12 “the ‘substantial’ or ‘motivating’ factor” behind defendant’s adverse actions. See Brodheim v. 13 Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). 14 The two remaining groups of allegations (“Claim II” and “Claim “III”) either fail to state a 15 claim for relief or are not sufficiently related to the First Amendment retaliation claim identified 16 above. For example, Claim II alleges that defendants Coker, Vega, and Charon retaliated against 17 plaintiff by housing him with a violent and predatory inmate because plaintiff filed an 18 administrative appeal after Coker issued a false rules violation report charging plaintiff with 19 refusing housing. ECF No. 16 at 9-10. It is well settled that a claimant may not proceed with 20 various unrelated claims against separate defendants: 21 “The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim to relief as an original claim, counterclaim, cross- 22 claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the 23 party has against an opposing party.’ Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be 24 joined with unrelated Claim B against Defendant 2.” 25 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Whether defendants Coker, Vega, and 26 Charon retaliated against plaintiff as described above is an entirely separate question from 27 whether defendants L. Cantu and G. Valencia retaliated against plaintiff as alleged in Claim I. 28 The alleged retaliation by Cantu and Valencia – fabricating and pursuing false charges against 1 plaintiff – relates to a prior retaliation lawsuit plaintiff filed in 2018.2 The alleged retaliation by 2 Coker, Vega, and Charon – housing plaintiff with a violent and predatory inmate – is premised on 3 an administrate appeal plaintiff filed after the alleged retaliation by Cantu and Valencia, and by 4 implication, after the 2018 lawsuit. While related somewhat chronologically, the subject matter 5 of the administrative appeal for which Coker, Vega, and Charon allegedly retaliated (whether 6 plaintiff refused housing while confined to administrative segregation) appears to be factually 7 unrelated to the lawsuit. 8 Plaintiff also alleges that his cellmate tested positive for COVID-19. ECF No. 16 at 12. 9 He states that unidentified “floor staff” ignored his requests to be rehoused on the basis that he is 10 at a high risk of death from COVID-19 due to his chronic restrictive pulmonary disease and 11 asthma. Id. Plaintiff ultimately contracted the virus from his cellmate, but does not allege what 12 symptoms he experienced, if any. Id. at 13. Plaintiff attempts to hold defendants A/W Cantu and 13 Warden Covello responsible for these circumstances but he has not alleged facts showing (1) how 14 either of them was personally involved in violating plaintiff’s federal statutory or constitutional 15 rights; or (2) that such a claim could be properly joined in this action against L. Cantu and G. 16 Valencia. 17 Finally, in Claim III, plaintiff alleges that his legal and educational property was 18 wrongfully confiscated. Id. at 14-15. Plaintiff does not identify a claim for relief stemming from 19 the alleged loss of his property. If plaintiff wishes to assert a First Amendment claim that the 20 deprivation denied him access to the courts, he must say so. He must also allege specific facts 21 showing that a specific defendant actually injured his litigation efforts, in that his or her conduct 22 hindered plaintiff’s efforts to bring, or caused him to lose, an actionable claim challenging his 23 criminal sentence or conditions of confinement. See Lewis v. Casey, 518 U.S. 343, 351 (1996); 24 Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). Alternatively, if plaintiff means to assert 25 2 In the lawsuit, McClintock v. Cooper, No. 2:18-cv-0560-JAM-KJN (E.D. Cal.), the court 26 found that plaintiff had stated potentially colorable retaliation claims based upon plaintiff’s filing of (1) an April 17, 2017 grievance against individuals named Cooper, Armenta, Winkler, 27 Wheeler, J. Cantu and L. Cantu; and (2) a separate grievance filed against an individual identified as Walker. See McClintock v. Cooper, No. 2:18-cv-0560-JAM-KJN (E.D. Cal.), ECF No. 14 at 28 4-5. 1 another retaliation claim, he must specifically allege as much and satisfy the elements required to 2 state a retaliation claim under the First Amendment. 3 For these reasons, plaintiff may either proceed only on the potentially cognizable First 4 Amendment retaliation claim against defendants L. Cantu and G. Valencia or he may amend his 5 complaint to attempt to cure the complaint’s deficiencies. Plaintiff is not obligated to amend his 6 complaint. 7 Leave to Amend 8 Any amended complaint must identify as a defendant only persons who personally 9 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 10 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 11 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 12 legally required to do that causes the alleged deprivation). 13 It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 14 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George 15 v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 16 Any amended complaint must be written or typed so that it so that it is complete in itself 17 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 18 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 19 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 20 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 21 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 22 1967)). 23 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 24 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 25 See Local Rule 110. 26 ///// 27 ///// 28 ///// 1 Conclusion 2 Accordingly, IT IS ORDERED that: 3 1. Plaintiffs second amended complaint (ECF No. 16) alleges, for screening 4 purposes, a potentially cognizable First Amendment retaliation claim against 5 defendants L. Cantu and G. Valencia. 6 2. All other claims, including those against defendants G. McCarthy, K. Luther, C. 7 Werner, J. Mahr, Z. Hughes, J. Charon, J. Vega, T. Coker, J. Austin, Covello, and 8 A/W Cantu are dismissed with leave to amend within 30 days of service of this 9 order. Plaintiff is not obligated to amend his complaint. 10 3. Within thirty days plaintiff shall return the notice below advising the court whether 11 he elects to proceed with the potentially cognizable claim identified herein or file 12 an amended complaint. Ifthe former option is selected and returned, the court will 13 enter an order directing service at that time; and 14 4. Failure to comply with any part of this this order may result in dismissal of this 15 action. 16 | Dated: February 2, 2022. 17 18 > 19 / EDMUND F. BRENNAN 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN SCOTT McCLINTOCK, No. 2:21-cv-0850-TLN-EFB P 12 Plaintiff, 13 v. NOTICE 14 G. VALENCIA, et al., 15 Defendants. 16 17 In accordance with the court’s Screening Order, plaintiff hereby elects to: 18 (1) ______ proceed only with the potentially cognizable First Amendment retaliation 19 claim against defendants L. Cantu and G. Valencia. 20 OR 21 22 (2) ______ delay serving any defendant and files a third amended complaint. 23 24 _________________________________ 25 Plaintiff 26 Dated: 27 28