(PC) Jones v. Madden ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAYON JONES, No. 2:22-cv-01592-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 RAYMOND MADDEN, 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. In addition to filing a complaint, he has filed an application for leave to proceed 19 in forma pauperis pursuant to 28 U.S.C. § 1915 and a request for appointment of counsel. 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 Request for Appointment of Counsel 26 District courts lack authority to require counsel to represent indigent prisoners in section 27 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 28 circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 1 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 2 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 3 circumstances” exist, the court must consider the likelihood of success on the merits as well as the 4 ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 5 involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, 6 the court finds there are no exceptional circumstances in this case. 7 Screening Standards 8 Federal courts must engage in a preliminary screening of cases in which prisoners seek 9 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 10 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 11 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 12 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 13 relief.” Id. § 1915A(b). 14 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 15 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 16 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 17 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 18 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 19 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 20 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 21 U.S. 662, 679 (2009). 22 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 23 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 24 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 25 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 26 678. 27 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 28 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 1 content that allows the court to draw the reasonable inference that the defendant is liable for the 2 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 3 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 4 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 5 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 6 Screening Order 7 Plaintiff’s complaint identifies Raymond Madden, Warden at RJ Donovan Correctional 8 Facility (“RJD”), and C. Green, correctional officer at RJD, as defendants. ECF No. 1 at 1-2. 9 The complaint alleges that on September 23, 2021, correctional officer Green “snatched” 10 plaintiff’s walker and caused swelling to plaintiff’s left thumb. Id. at 3-4. Although plaintiff 11 alleges that Green is a correctional officer at RJD, he claims that video footage of their encounter 12 is available from California State Prison, Sacramento (“CSP-Sac”). Id. at 6. Plaintiff 13 subsequently filed a “Notice of Clerical Error,” stating that the correct case title is “Jeff Lynch, et 14 al., c/o C. Green.” ECF No. 5. 15 Plaintiff’s complaint cannot survive screening because it violates Rule 8. A sufficiently 16 plead complaint under Rule 8 must “put defendants fairly on notice of the claims against them.” 17 McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). Here, it is not clear whether the 18 correctional officer plaintiff intends to sue was employed at RJD or CSP-Sac.1 Plaintiff’s “Notice 19 of Clerical Error” does not clear up the confusion. Moreover, filing separate documents that are 20 intended to be read together as a single complaint is not the proper procedure for amending or 21 supplementing a complaint. To add, omit, or correct information in the operative complaint, 22 plaintiff must file another complaint that is complete within itself. Accordingly, plaintiff’s 23 complaint will be dismissed with leave to amend to cure these deficiencies. 24 ///// 25 ///// 26 27 1 If the answer is RJD, then venue in this court is not proper. RJD is in San Diego County, which lies within the venue of the Southern District of California, and not in this court. 28 See 28 U.S.C. § 1391(b); 28 U.S.C. § 84(d). 1 Leave to Amend 2 Plaintiff is cautioned that any amended complaint must identify as a defendant only 3 persons who personally participated in a substantial way in depriving him of his constitutional 4 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 5 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 6 perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also 7 include any allegations based on state law that are so closely related to his federal allegations that 8 “they form the same case or controversy.” See 28 U.S.C. § 1367(a). 9 The amended complaint must also contain a caption including the names of all defendants. 10 Fed. R. Civ. P. 10(a). 11 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 12 George, 507 F.3d at 607. Nor, as mentioned above, may he bring unrelated claims against 13 multiple defendants. Id. 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. E.D. Cal. 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 Any amended complaint should be as concise as possible in fulfilling the above 22 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 23 background which has no bearing on his legal claims. He should also take pains to ensure that his 24 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 25 and organization. Plaintiff should carefully consider whether each of the defendants he names 26 actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 27 which plaintiff names dozens of defendants will not be looked upon favorably by the court. 28 ///// 1 Conclusion 2 Accordingly, it is ORDERED that: 3 1. Plaintiffs application to proceed in forma pauperis (ECF No. 7) is granted; 4 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in 5 accordance with the notice to the California Department of Corrections and 6 Rehabilitation filed concurrently herewith; 7 3. Plaintiff's request for appointment of counsel (ECF No. 3) is denied without prejudice; 8 4. Plaintiff's complaint (ECF No. 1) is dismissed with leave to amend within 30 days of 9 service of this order; and 10 5. Failure to comply with any part of this this order may result in dismissal of this action. 1] 12 || Dated: January 5, 2023. □□ PDEA EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28