(PC) Green v. Batchelor ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LIFALFA GREEN, No. 2:19-cv-0538-EFB P 12 Plaintiff, 13 v. ORDER 14 MARY BATCHELOR, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C. 18 § 1983, seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (ECF No. 10). 19 Application to Proceed In Forma Pauperis 20 Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 21 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 22 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 23 § 1915(b)(1) and (2). 24 Screening Standards 25 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. 27 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 28 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 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 alleges that at a July 27, 2017 classification hearing, he spoke up “in defense of 25 [his] rights and privileges,” and questioned who was “in charge” of the meeting. ECF No. 1 at 3. 26 Defendant Batchelor allegedly became enraged and threatened to label plaintiff a sex offender. 27 Id. On September 11, 2017, defendant Batchelor allegedly “ma[de] good on her threat” and 28 falsely noted in plaintiff’s C-file that he is a sex offender. Id. at 8. 1 Plaintiff names additional defendants – Myers, Difuntorum, Bayoneta, August, and 2 Moreno – but includes no allegations of wrongdoing against them. See generally id. 3 Liberally construed, plaintiff’s allegations state a potentially cognizable First Amendment 4 retaliation claim against defendant Batchelor. Plaintiff may either proceed with his retaliation 5 claim against Batchelor only or he may amend his complaint to attempt to assert additional claims 6 against the other named defendants. He may not, however, change the nature of this suit by 7 alleging new, unrelated claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Moreover, 8 plaintiff is not obligated to amend his complaint. 9 Leave to Amend 10 Any amended complaint must identify as a defendant only persons who personally 11 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 12 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 13 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 14 legally required to do that causes the alleged deprivation). Plaintiff is not obligated to file an 15 amended complaint. 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 E.D. Cal. L.R. 110. 26 ///// 27 ///// 28 ///// 1 Conclusion 2 Accordingly, it is ORDERED that: 3 1. Plaintiff’ s request to proceed in forma pauperis (ECF No. 10) is granted. 4 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 5 in accordance with the notice to the California Department of Corrections and 6 Rehabilitation filed concurrently herewith. 7 3. Plaintiff’ s complaint alleges, for screening purposes, a viable First Amendment 8 retaliation claim against defendant Batchelor. 9 4. All other claims are dismissed with leave to amend within 30 days from the date of 10 service of this order. Plaintiff is not obligated to amend his complaint. 11 5. Within thirty days plaintiff shall return the notice below advising the court whether 12 he elects to proceed with the cognizable claim or file an amended complaint. If 13 the former option is selected and returned, the court will enter an order directing 14 service at that time; 15 6. Failure to comply with any part of this this order may result in dismissal of this 16 action. 17 || DATED: March 10, 2020. tid, PDEA 18 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 1 2 3 4 UNITED STATES DISTRICT COURT 5 FOR THE EASTERN DISTRICT OF CALIFORNIA 6 7 LIFALFA GREEN, No. 2:19-cv-0538-EFB P 8 Plaintiff, 9 v. NOTICE OF SUBMISSION OF DOCUMENTS 10 MARY BATCHELOR, et al., 11 Defendants. 12 13 In accordance with the court’s Screening Order, plaintiff hereby elects to: 14 15 (1) ______ proceed only with First Amendment retaliation claim against defendant 16 Batchelor; 17 18 OR 19 (2) ______ delay serving any defendant and files an amended complaint. 20 21 _________________________________ 22 Plaintiff 23 Dated: 24 25 26 27 28