Michael Donawa v. Mia et al

Filing 31

MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal; the FAC is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this Memorandum and Order (September 7, 2012) within which to file a Second Amended Complaint. See order for details. (Attachments: # 1 Civil Rights Complaint, # 2 Notice of Dismissal) (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHAEL DONAWA, Plaintiff, 12 v. 13 14 OFFICER MIA, et al., Defendants. 15 ) ) ) ) ) ) ) ) ) ) NO. EDCV 12-00213 DOC (SS) MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND 16 17 I. 18 INTRODUCTION 19 20 On November 3, 2011, plaintiff Michael Donawa, a federal prisoner 21 proceeding pro se, filed a civil rights complaint in the Middle District 22 of Florida pursuant to Bivens v. Six Unknown Named Agents of the Federal 23 Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 24 (1971). 25 District of California, this Court dismissed the Complaint with leave 26 to amend due to various deficiencies in pleading. 27 28 On May 30, 2012, after the case was transferred to the Central Plaintiff filed a 1 First Amended Complaint (“FAC”) on July 12, 2012. For the reasons 2 stated below, the FAC is dismissed with leave to amend.1 3 4 Congress mandates that district courts initially screen civil 5 complaints filed by a prisoner seeking redress from a governmental 6 entity or employee. 7 a complaint, or any portions thereof, before service of process if the 8 Court concludes that the complaint (1) is frivolous or malicious, (2) 9 fails to state a claim upon which relief can be granted, or (3) seeks 10 monetary relief from a defendant who is immune from such relief. 11 28 U.S.C. § 1915A(b)(1)-(2); see also Lopez v. Smith, 203 F.3d 1122, 12 1126-27 & n.7 (9th Cir. 2000) (en banc). 28 U.S.C. § 1915A(a). This Court may dismiss such 13 14 II. 15 ALLEGATIONS OF THE FIRST AMENDED COMPLAINT 16 17 Plaintiff names as Defendants three employees of the United States 18 Penitentiary at Victorville in their individual capacities: (1) Warden 19 J.L. 20 “Defendants”). 21 Federation of Government Employees (“AFGE”), a labor union representing 22 federal employees within the Federal Bureau of Prisons (“BOP”), in its 23 “official and individual capacity.” Norwood; (2)Captain (FAC at Brown; and The 3-4). Officer FAC also Mia (3)(collectively names the American (Id. at 5). 24 25 26 27 28 1 Magistrate Judges may dismiss a complaint with leave to amend without approval of the District Judge. See McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 2 1 Plaintiff alleges that during an inspection, Defendant Mia “grabbed 2 the Plaintiff’s testicles through his pants with enough excessive force 3 to evoke an involuntary reaction that caused the Plaintiff’s legs to 4 buckle.” 5 next day. 6 stewart [sic] seeking to have the plaintiff removed from the scene in 7 order to harass and intimidate, and the defendant (“AFGE”) inlisted 8 [sic] a squad of officers to conduct a harassment campaign against the 9 plaintiff in excessive cell and body searches.” (Id. at 7). (Id.). Plaintiff alleges the pain continued through the After the incident, “defendant Mia went to her union (Id. at 9). Captain 10 Brown and Warden Norwood ordered that Plaintiff be moved to the Special 11 Housing Unit (“SHU”), where he was subjected “to a series of cell 12 rotation, excessive light illumination and sleep deprivation,” according 13 to Defendants’ “unlawful master agreement.” 14 also alleges that all Defendants met and organized Plaintiff’s removal 15 from Victorville Penitentiary to Coleman Federal Penitentiary, where he 16 is currently housed. (Id. at 10). Plaintiff (Id. at 3, 10). 17 18 Plaintiff seeks $25,000 in monetary damages and $25,000 in punitive 19 damages from each Defendant. (Id. at 11). Plaintiff also requests 20 “[d]issolution of the collective bargaining agreement between [the AFGE] 21 and [the BOP] mandating that Federal Employee rights be given any and 22 all preferential treatment over inmate rights.” (Id.). 23 24 III. 25 DISCUSSION 26 27 28 Pursuant to 28 U.S.C. § 1915A(b), Plaintiff’s FAC due to defects in pleading. 3 the Court must dismiss Pro se litigants in civil 1 rights cases, however, must be given leave to amend their complaints 2 unless it is absolutely clear that the deficiencies cannot be cured by 3 amendment. 4 grants Plaintiff leave to amend, as indicated below. See Lopez, 203 F.3d at 1128-29. Accordingly, the Court 5 6 A. 7 The American Federal Government Employees Union Local Is Not A Proper Defendant 8 9 To the extent that Plaintiff is attempting to sue or seek relief 10 from the AFGE, the FAC is defective because a civil rights action 11 against a federal defendant under Bivens may be brought only against the 12 offending individual officer. 13 61, 72, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001); id. at 70-71 14 (explaining that because the “purpose of Bivens is to deter individual 15 federal 16 “deterrent effects of the Bivens remedy would be lost” if the Court 17 “were to imply a damages action directly” against agencies). As a labor 18 union, the AFGE is not an individual officer or federal employee, as 19 Plaintiff himself recognizes. 20 improper defendant in a Bivens action. In any amended complaint, to the 21 extent that Plaintiff asserts a constitutional civil rights claim, 22 Plaintiff may not name as a Defendant or seek relief from the AFGE. officers from Corr. Servs. Corp. v. Malesko, 534 U.S. committing constitutional (FAC at 5). violations,” the Accordingly, the AFGE is an 23 24 25 B. The FAC Fails To Allege Sufficient Facts To State A Claim For Conspiracy 26 27 Plaintiff alleges a conspiracy among Defendants to violate his 28 civil rights, although the nature of the conspiracy, and even the 4 1 identity of its participants and their specific involvement, is not 2 clear. (FAC at 2-4, 9-10). “To state a cause of action [for conspiracy 3 to 4 conspiracy, (2) to deprive any person or a class of persons of the equal 5 protection of the laws, or of equal privileges and immunities under the 6 laws, (3) an act by one of the conspirators in furtherance of the 7 conspiracy, and (4) a personal injury, property damage or a deprivation 8 of any right or privilege of a citizen of the United States.” Gillespie 9 v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980); see also 42 U.S.C. § interfere with civil rights], a complaint must allege (1) a 10 1985. However, “[t]hreadbare recitals of the elements of a cause of 11 action, supported by mere conclusory statements, do not suffice,” by 12 themselves, to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 13 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). 14 15 Plaintiff fails to allege any factual support for his vague claims 16 of conspiracy. Plaintiff must show that individual Defendants conspired 17 to deprive him of his constitutional rights. 18 explain 19 individual Defendant did as a participant in the conspiracy. 20 v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (requiring “sufficient 21 allegations of underlying facts” showing the 22 defendant in the constitutional violation to state a claim). 23 extent that the purported conspiracy consisted of transferring Plaintiff 24 to the SHU or another prison, the claim fails because, as further 25 discussed below, Plaintiff does not have a constitutional right to any 26 particular housing. 27 conspiracy consisted of colluding to “bargain[] away inmate rights,” the 28 claim fails because it is nothing more than a vague and “threadbare the nature and purpose of (FAC at 10). 5 the Plaintiff must clearly conspiracy and what each See Starr involvement of each To the To the extent that the alleged 1 recital” of the elements of a claim. 2 (Id.). As such, the FAC must be dismissed with leave to amend. 3 4 C. 5 The FAC Fails To State A Claim To The Extent that Plaintiff Alleges A Right To Be Housed In A Particular Prison 6 7 Even apart from his conspiracy allegations, it appears that 8 Plaintiff may be attempting to state a claim based on his removal from 9 Victorville Penitentiary or his placement in the SHU. (FAC at 10). 10 However, prisoners have no constitutional right to be housed in a 11 particular prison. 12 75 L. Ed. 2d 813 (1983); see also Meachum v. Fano, 427 U.S. 215, 96, 13 S.Ct. 2532, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976) 14 (concluding that a prisoner has no liberty interest in which prison he 15 is housed). Additionally, Plaintiff does not possess a liberty interest 16 in avoiding confinement in the SHU. See Sandin v. Conner, 515 U.S. 472, 17 483-87, 115 S.Ct. 2293, 132 L. Ed. 2d 418 (1995). 18 must be dismissed with leave to amend. Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, Therefore, the FAC 19 20 21 D. The FAC Fails To State A Claim To The Extent that Plaintiff Alleges A Right To A Particular Grievance Procedure Or Outcome 22 23 It also appears that Plaintiff may be attempting to state a claim 24 based on the prison’s denial of his grievances. 25 a prisoner must “exhaust his administrative remedies before filing a 26 lawsuit concerning prison conditions,” Sapp v. Kimbrell, 623 F.3d 813, 27 821 (9th Cir. 2010) (citing 42 U.S.C. § 1997e(a)), the denial of a 28 grievance, without more, is insufficient to establish liability. 6 (FAC at 8-9). Though See 1 Shehee v. Luttrell, 1999 F.3d 295, 300 (6th Cir. 1999). Additionally, 2 there is no constitutional right to a particular grievance process. 3 Jones v. North Carlina Prisoners’ Labor Union, Inc., 433 U.S. 119, 130 4 n.6, 97 S. Ct. 2532, 53 L. Ed. 2d 620 (1977); Mann v. Adams, 855 F.2d 5 639 (9th Cir. 1988). 6 7 Here, Plaintiff alleges that Warden Norwood “denied Plaintiff’s 8 request to have defendant Mia place [sic] on temporary leave of absence 9 regardless of the fact she may attempt to victimize the plaintiff 10 again.” (FAC at 8-9). Plaintiff further states that he received a 11 “non-responsive answer” to his BP-8 Informal Resolution Complaint Form 12 and a denial of his BP-9 Complaint. 13 constitutional right to a particular grievance procedure or outcome. 14 See, e.g. Jones, 433 U.S. at 130 n.6; Shehee, 1999 F.3d at 300. 15 Therefore, the FAC must be dismissed with leave to amend. (Id. at 9). However, there is no 16 17 18 E. The FAC Fails To State A Claim To The Extent That Plaintiff Alleges Excessive Searches 19 20 Plaintiff alleges “excessive cell and body searches on every 21 shift.” (FAC at 9). Generally, strip searches of prisoners do not 22 violate the Fourth Amendment. See Michenfelder v. Sumner, 860 F.2d 328, 23 333-34 (9th Cir. 1988). 24 vindictive, harassing, or unrelated to any legitimate penological 25 interest,” may be unconstitutional. 26 a claim, the court asks: 1) if the officials acted with a sufficiently 27 culpable state of mind; and 2) if the alleged wrongdoing was objectively However, strip searches that are “excessive, 28 7 Id. at 332. In considering such 1 harmful enough to establish a constitutional violation. Hudson v. 2 McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 L. Ed. 2d 156 (1992). 3 4 Here, to the extent that Plaintiff’s claim is based solely on the 5 frequency of the searches, it does not allege sufficient facts to state 6 a claim for excessive searches. 7 at 678 (requiring allegations of facts supporting every element in a 8 complaint). (FAC at 9); see also Iqbal, 556 U.S. Therefore, the FAC must be dismissed with leave to amend. 9 10 F. The FAC Violates Federal Rule Of Civil Procedure 8 11 12 Federal Rule of Civil Procedure 8(a)(2) requires that a complaint 13 contain “‘a short and plain statement of the claim showing that the 14 pleader is entitled to relief,’ in order to ‘give the defendant fair 15 notice of what the . . . claim is and the grounds upon which it rests.’” 16 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. 17 Ed. 2d 929 (2007). 18 pleading shall be simple, concise, and direct.” 19 Rule 8 if a defendant would have difficulty understanding and responding 20 to the complaint. Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, 21 Inc., 637 F.3d 1047, 1059 (9th Cir. 2011). Rule 8(e)(1) instructs that “[e]ach averment of a A complaint violates 22 23 Here, the FAC does not comply with the standards of Rule 8. 24 Although the FAC appears to state a claim against Officer Mia for 25 excessive force, its remaining allegations are difficult to understand. 26 For example, the FAC mixes potentially relevant and irrelevant facts and 27 legal theories. 28 be a civil rights claim against Officer Mia for violation of Plaintiff’s Although the heart of Plaintiff’s Complaint appears to 8 1 constitutional rights, the FAC’s conspiracy allegations are unsupported 2 and vague. 3 Plaintiff’s other claims, if any, are also unclear. (FAC at 10-12). Similarly, the nature and number of 4 5 Therefore, the FAC does not provide Defendants with fair notice of 6 the claims in a clear and concise statement. See Twombly, 550 U.S. at 7 555. 8 Plaintiff choose to file a Second Amended Complaint, Plaintiff is 9 advised to identify the nature of his legal claims clearly, the facts 10 giving rise to each claim, the specific Defendants against whom each 11 claim is raised and the relief sought. 12 discuss only those legal wrongs for which Plaintiff is seeking relief. Accordingly, the FAC is dismissed with leave to amend. Should Any amended complaint should 13 14 IV. 15 CONCLUSION 16 17 For the reasons stated above, the FAC is dismissed with leave to 18 amend. If Plaintiff still wishes to pursue this action, he is granted 19 thirty (30) days from the date of this Memorandum and Order within which 20 to file a Second Amended Complaint. 21 Plaintiff shall cure the defects described above. 22 include new defendants or new allegations that are not reasonably 23 related to the claims asserted in the original complaint. The Second 24 Amended Complaint, if any, shall be complete in itself and shall bear 25 both the designation “Second Amended Complaint” and the case number 26 assigned to this action. 27 original Complaint or the FAC. In any amended complaint, the Plaintiff shall not It shall not refer in any manner to the Plaintiff shall limit his action only 28 9 1 to those Defendants who are properly named in such a complaint, 2 consistent with the authorities discussed above. 3 4 In any amended complaint, Plaintiff should confine his allegations 5 to those operative facts supporting each of his claims. Plaintiff is 6 advised that pursuant to Federal Rule of Civil Procedure 8(a), all that 7 is required is a “short and plain statement of the claim showing that 8 the pleader is entitled to relief.” 9 to utilize the standard civil rights complaint form when filing any Plaintiff is strongly encouraged In any amended 10 amended complaint, a copy of which is attached. 11 complaint, the Plaintiff should make clear the nature and grounds for 12 each claim and specifically identify the defendants he maintains are 13 liable for that claim. 14 Complaint, 15 numbered. 16 \\ 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ including In addition, each page of the Second Amended exhibits, must 10 be legible and consecutively 1 Plaintiff is explicitly cautioned that failure to timely file a 2 Second Amended Complaint, or failure to correct the deficiencies 3 described above, will result in a recommendation that this action be 4 dismissed with prejudice for failure to prosecute and obey Court orders 5 pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff is further 6 advised that if he no longer wishes to pursue this action, he may 7 voluntarily dismiss it by filing a Notice of Dismissal in accordance 8 with Federal Rule of Civil Procedure 41(a)(1). 9 Dismissal is attached for Plaintiff’s convenience. A form Notice of 10 11 DATED: August 8, 2012 /S/ _____________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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