(PC) Benton v. Clingman ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRUCE MILES BENTON, Case No. 2:22-cv-02275-JDP (PC) 12 Plaintiff, SCREENING ORDER THAT PLAINTIFF: 13 v. (1) FILE AN AMENDED COMPLAINT; OR 14 CLINGMAN, (2) STAND BY HIS COMPLAINT 15 Defendant. SUBJECT TO A RECOMMENDATION THAT IT BE 16 DISMISSED 17 ECF No. 1 18 THIRTY-DAY DEADLINE 19 20 Plaintiff Bruce Miles Benton is a county inmate proceeding without counsel in this civil 21 rights action brought under 42 U.S.C. § 1983. The claim in the complaint appears to be barred by 22 the statute of limitations. I will give plaintiff a chance to amend his complaint and to explain why 23 it should still proceed. Plaintiff has also filed an application to proceed in forma pauperis, ECF 24 No. 2, which I will grant. 25 Screening and Pleading Requirements 26 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 27 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 28 claims and dismiss any portion of the complaint that is frivolous or malicious, that fails to state a 1 claim upon which relief may be granted, or that seeks monetary relief from a defendant who is 2 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 3 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 4 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 5 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 6 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 7 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 8 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 9 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 10 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 11 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 12 n.2 (9th Cir. 2006) (en banc) (citations omitted). 13 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 14 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 15 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 16 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 17 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 18 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 19 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 20 Analysis 21 Plaintiff alleges that in August 2014, while incarcerated at El Dorado County Jail, 22 defendant correctional officer Clingman opened a door in the jail that allowing inmates in general 23 population to mix with inmates in protective custody.1 ECF No. 1 at 3-4. Plaintiff claims that 24 this led to plaintiff being assaulted by several inmates. Id. at 4. 25 1 Plaintiff states in his complaint that he filed another action relating to this incident, but 26 that he accidentally dismissed that case. See ECF No. 1 at 5-7 (citing to case Benton v. El 27 Dorado Cnty. Sheriff’s Dep’t, 2:15-cv-00772-TLN-AC). If plaintiff desires to re-open that case, he must file a motion in that case. Plaintiff is notified that he cannot resume litigation of his prior 28 case in this new case. 1 The statute of limitations in a section 1983 action is derived from the forum state’s statute 2 of limitations for personal injury actions. Usher v. Los Angeles, 828 F.2d 556, 558 (9th Cir. 3 1987). Under California law, a prisoner serving a term less than life has four years to bring a 4 personal injury action. Cal. Code of Civ. Proc. §§ 335.1, 352.1(a). Plaintiff alleges that the 5 injury at issue in this case occurred in August 2014, more than eight years before this action was 6 filed. Accordingly, it appears that plaintiff’s claim is time-barred.2 However, before 7 recommending that this action be dismissed, I will grant plaintiff leave to amend so that he may 8 explain why this action should still proceed. 9 I will grant him a chance to amend his complaint before recommending that this action be 10 dismissed. If plaintiff decides to file an amended complaint, the amended complaint will 11 supersede the current complaint. See Lacey v. Maricopa Cnty., 693 F. 3d 896, 907 n.1 (9th Cir. 12 2012) (en banc). This means that the amended complaint will need to be complete on its face 13 without reference to the prior pleading. See E.D. Cal. Local Rule 220. Once an amended 14 complaint is filed, the current complaint no longer serves any function. Therefore, in an amended 15 complaint, as in an original complaint, plaintiff will need to assert each claim and allege each 16 defendant’s involvement in sufficient detail. The amended complaint should be titled “Third 17 Amended Complaint” and refer to the appropriate case number. If plaintiff does not file an 18 amended complaint, I will recommend that this action be dismissed. 19 Accordingly, it is ORDERED that: 20 1. Plaintiff’s application to proceed in forma pauperis, ECF No. 2, is granted. 21 2. Within thirty days of the service of this order, plaintiff must either file an amended 22 complaint or advise the court he wishes stand by his current complaint. If he selects the latter 23 option, I will recommend that this action be dismissed. 24 3. Failure to comply with this order may result in the dismissal of this action. 25 4. The clerk’s office is directed to send plaintiff a complaint form. 26 2 While generally raised as an affirmative defense, failure to comply with the statute of 27 limitations can be considered at the screening phase if the failure is apparent, and if it is apparent from the face of the complaint that the plaintiff cannot “prevail, as a matter of law, on the 28 equitable tolling issue.” See Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993). 1 | 1718 SO ORDERED. 3 ( — Dated: _ March 27, 2023 ssn (aioe 4 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 7 g 9 10 il 12 3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28