(PC) Gleason v. Lynch ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 STANLEY GLEASON, No. 2:20-cv-2406-JAM-EFB P 11 Plaintiff, 12 v. ORDER 13 JEFF LYNCH, et al., 14 Defendants. 15 16 Plaintiff is a former state prisoner proceeding without counsel in an action brought under 17 42 U.S.C. § 1983. After the dismissal of his original complaint pursuant to 28 U.S.C. §1915A, he 18 has filed an amended complaint.1 ECF No. 11. He has also filed a motion to transfer venue. 19 ECF No. 16. As discussed below, only plaintiff’s Eighth Amendment claims against defendants 20 Taylor and Meat survive screening; all other claims are dismissed with leave to amend and the 21 motion to transfer venue is denied. 22 Screening Order 23 Federal courts must engage in a preliminary screening of cases in which prisoners seek 24 redress from a governmental entity or officer or employee of a governmental entity.2 28 U.S.C. 25 26 1 Accordingly, the February 1, 2021 findings and recommendations recommending that this action be dismissed are vacated (ECF No. 10). 27 2 Plaintiff was confined to a state prison when he commenced this lawsuit. See ECF No. 28 1. 1 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 2 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 3 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 4 relief.” Id. § 1915A(b). 5 Plaintiff claims that on the evenings of November 18, 19, and 20, 2020, defendant 6 correctional officer Taylor refused to provide plaintiff with his evening meal, even throwing 7 plaintiff’s food tray on the floor of plaintiff’s cell. ECF No. 11 at 3, 6, 8. Plaintiff complained to 8 Taylor’s supervisor, officer Meat, but Meat did nothing to stop Taylor’s behavior. Id. at 8. 9 Liberally construed, these allegations state a potentially cognizable Eighth Amendment claim 10 against defendants Taylor and Meat. See Taylor v. List, 880 F.2d 1040, at 1045 (9th Cir. 1989) 11 (supervisors are liable for constitutional violations of their subordinates if they know of the 12 violations and fail to act to prevent them). 13 Like the original complaint, the amended complaint again references “retaliation.” 14 However, plaintiff does not allege any facts to support a First Amendment retaliation claim. 15 Within the prison context, a viable claim of First Amendment retaliation entails five basic 16 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 17 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate’s 18 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 19 correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-568 (9th Cir. 2005). 20 The amended complaint lists numerous defendants that plaintiff seeks to hold liable 21 simply because of their supervisory roles at California State Prison, Sacramento. However, there 22 is no respondeat superior liability under section 1983. See Taylor v. List, 880 F.2d 1040, 1045 23 (9th Cir. 1989). Therefore, claims against defendants Warden Jeff Lynch, J. Clawson, J. Polich, 24 T. Foss, Wesley, and Beyer, are dismissed. 25 Plaintiff also seeks to hold defendant Marshall liable because plaintiff was dissatisfied 26 with his handling of plaintiff’s administrative appeal. ECF No. 11 at 6. This is not a proper basis 27 for liability on a federal civil rights claim. Any failure to properly process or respond to an 28 administrative appeal does not violate due process, as there are no constitutional requirements 1 regarding how a grievance system is operated. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2 2003); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). For this reason, claims against 3 defendant A. Marshall are dismissed. 4 The caption of the amended complaint lists Lindquist, Hubbard, Johnson, and Flores as 5 additional defendants. However, plaintiff has not alleged how any of these individuals personally 6 violated his rights and their supervisory roles alone are not a proper basis for liability. See Taylor 7 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Thus, claims against defendants Lindquist, 8 Hubbard, Johnson, and Flores are also dismissed. 9 Plaintiff may either proceed with this lawsuit on his Eighth Amendment claim against 10 defendants Taylor and Meat only, or he may amend his complaint to attempt to cure its 11 deficiencies. He may not, however, change the nature of this suit by alleging new, unrelated 12 claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff is not obligated to amend 13 his complaint. 14 Leave to Amend 15 Any amended complaint must identify as a defendant only persons who personally 16 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 17 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 18 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 19 legally required to do that causes the alleged deprivation). Plaintiff is not obligated to file an 20 amended complaint. 21 Any amended complaint must be written or typed so that it so that it is complete in itself 22 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 23 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 24 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 25 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 26 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 27 1967)). 28 ///// 1 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 2 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 3 See E.D. Cal. L.R. 110. 4 Motion to Transfer Venue 5 Plaintiff moves to transfer venue to the Central District of California because his parole 6 conditions limit his ability to travel more than fifty miles from his residence. See ECF No. 16 7 (while plaintiff states he is homeless, he has provided the court with an address based in San 8 Bernardino, California). 9 The federal venue statute provides that a civil action “may be brought in (1) a judicial 10 district in which any defendant resides, if all defendants are residents of the State in which the 11 district is located, (2) a judicial district in which a substantial part of the events or omissions 12 giving rise to the claim occurred, or a substantial part of property that is the subject of the action 13 is situated, or (3) if there is no district in which an action may otherwise be brought as provided in 14 this action, any judicial district in which any defendant is subject to the court’s personal 15 jurisdiction with respect to such action.” 28 U.S.C. § 1391(b). 16 The Eastern District of California is the only proper venue for this case. Plaintiff’s claim 17 arose at California State Prison, Sacramento, where each of the defendants worked and 18 presumably reside. Plaintiff’s residence (or parole restrictions) is irrelevant in determining proper 19 venue. Thus, plaintiff’s motion to change venue (ECF No. 16) is denied. 20 Conclusion 21 Accordingly, it is ORDERED that: 22 1. The February 1, 2021 findings and recommendations (ECF No. 10) are 23 VACATED. 24 2. Plaintiff’s amended complaint (ECF No. 11) alleges, for screening purposes, a 25 potentially viable Eighth Amendment claim against defendants Taylor and Meat. 26 3. All other claims are DISMISSED with leave to amend within 30 days of service of 27 this order. Plaintiff is not obligated to amend his complaint. 28 ///// ] 4. Within thirty days plaintiff shall return the notice below advising the court whether 2 he elects to proceed with the potentially cognizable claims against defendants 3 Taylor and Meat or file a second amended complaint. If the former option is 4 selected and returned, the court will enter an order directing service at that time. 5 5. Failure to comply with any part of this this order may result in dismissal of this 6 action for the reasons stated herein. 7 6. Plaintiff's motion to transfer venue (ECF No. 16) is DENIED. 8 | DATED: March 19, 2021. tid, PDEA 10 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 STANLEY GLEASON, No. 2:20-cv-2406-JAM-EFB P 11 Plaintiff, 12 v. NOTICE OF ELECTION 13 JEFF LYNCH, et al., 14 Defendants. 15 16 In accordance with the court’s Screening Order, plaintiff hereby elects to: 17 18 (1) ______ proceed only with the Eighth Amendment claim against defendants 19 Taylor and Meat. 20 OR 21 22 (2) ______ delay serving any defendant and files a second amended complaint. 23 24 _________________________________ 25 Plaintiff 26 Dated: 27 28