(PC) Cain v. Brown ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER ALLEN CAIN, No. 2:21-cv-1327-EFB P 12 Plaintiff, 13 v. ORDER 14 K. BROWN, et al., 15 Defendants. 16 17 Plaintiff is a federal prisoner proceeding without counsel in an action brought for alleged 18 violations of his civil rights.1 In addition to filing a complaint (ECF No. 1), he also filed an 19 application to proceed in forma pauperis (ECF No. 2). 20 Application to Proceed in Forma Pauperis 21 The court has reviewed plaintiff’s application and finds that it makes the showing required 22 by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency 23 having custody of plaintiff to collect and forward the appropriate monthly payments for the filing 24 fee as set forth in 28 U.S.C. § 1915(b)(1) and (2). 25 ///// 26 27 1 Although the pre-printed form complaint used by plaintiff states that jurisdiction is invoked by 42 U.S.C. § 1983, that section is inapplicable because plaintiff is suing federal 28 officials. 1 Screening Standards 2 Federal courts must engage in a preliminary screening of cases in which prisoners seek 3 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 5 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 6 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 7 relief.” Id. § 1915A(b). 8 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 9 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 10 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 11 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 12 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 13 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 14 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 15 U.S. 662, 679 (2009). 16 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 17 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 18 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 19 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 20 678. 21 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 22 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 25 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 26 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 27 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 28 ///// 1 Screening Order 2 Plaintiff alleges that between October 13, 2020 and November 5, 2020, defendants 3 Thompson, Brown, Boulware, Shigeyasu, and Alatary denied him access to the court. ECF No. 1 4 at 9. More specifically, plaintiff claims that they denied him paper, a pen, and envelopes “during 5 the critical stages of [his] appeal process.” Id. at 8. They allegedly told plaintiff he could receive 6 mail but could not send mail out. Id. According to the complaint, defendants’ actions “caused 7 adverse decision to be ruled against [plaintiff] by the United States District Court of Eastern 8 Washington on [plaintiff’s] post-conviction appeal.” Id. 9 Plaintiff’s claim that defendants’ conduct caused the district court in Washington to issue 10 an adverse ruling is not supported by that court’s criminal docket in United States v. Cain, No. 11 2:16-cv-0176-RMP-1 (E.D. Wash.), of which this court takes judicial notice.2 On March 6, 2019, 12 the court issued a resentencing judgment. Id., at ECF No. 190. On the same day, plaintiff filed a 13 notice of appeal. Id., ECF No. 192. The U.S. Court of Appeals for the Ninth Circuit affirmed the 14 decision of the district court and issued its mandate on April 27, 2020. ECF Nos. 201, 202. On 15 May 7, 2020, a federal defender filed a notice of appearance on behalf of plaintiff. ECF No. 203. 16 Nothing further has been filed by either plaintiff or the court. Thus, the court has not issued any 17 adverse ruling to plaintiff as a result of defendants’ alleged conduct in October and November of 18 2020. 19 If plaintiff wishes to assert a First Amendment claim based on denial of access to the 20 courts, he must plead specific facts showing that defendants actually injured his litigation efforts. 21 See Lewis v. Casey, 518 U.S. 343, 351 (1996); Christopher v. Harbury, 536 U.S. 403, 412-15 22 (2002). In an abundance of caution, the court will afford plaintiff the opportunity to file an 23 amended complaint. 24 Leave to Amend 25 Plaintiff will be granted leave to file an amended complaint, if he can allege a cognizable 26 legal theory against a proper defendant and sufficient facts in support of that cognizable legal 27 2 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 28 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 1 theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must 2 afford pro se litigants an opportunity to amend to correct any deficiency in their complaints). 3 Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set 4 forth the claims and allegations against each defendant. 5 Any amended complaint must not exceed the scope of this order and may not add new, 6 unrelated claims. Further, any amended complaint must cure the deficiencies identified above 7 and also adhere to the following requirements: 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). It must also contain a caption 13 including the names of all defendants. Fed. R. Civ. P. 10(a). 14 Any amended complaint must be written or typed so that it so that it is complete in itself 15 without reference to any earlier filed complaint. L.R. 220. This is because an amended 16 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 17 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 18 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 19 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 20 1967)). 21 Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil 22 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 23 See E.D. Cal. L.R. 110. 24 Conclusion 25 Accordingly, it is ORDERED that: 26 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) is granted; 27 ///// 28 ///// 1 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 2 in accordance with the notice to the Federal Bureau of Prisons filed concurrently 3 herewith; 4 3. Plaintiff's complaint (ECF No. 1) is dismissed with leave to amend within 30 days 5 from the date of service of this order; and 6 4. Failure to comply with any part of this this order may result in dismissal of this 7 action. 8 | DATED: September 24, 2021. 9 EDMUND F. BRENNAN 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28