Shelley Graham Towns, Sr v. B M Cash et al

Filing 7

MEMORANDUM AND ORDER DISMISSING COMPLAINT WITH 30 DAYS LEAVE TO AMEND by Magistrate Judge Ralph Zarefsky. (See document for details). (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SHELLEY GRAHAM TOWNS SR.,

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Plaintiff,

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vs.
B.M. CASH, WARDEN, ET AL.,

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Defendants.

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CASE NO. ED CV 14-2314 JVS (RZ)
MEMORANDUM AND ORDER
DISMISSING COMPLAINT WITH
LEAVE TO AMEND

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The pro se, in forma pauperis plaintiff is a state inmate. He claims that 16

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prison employees were deliberately indifferent to his medical needs and violated other

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civil rights when they revoked or refused various medical accommodations or failed to

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uphold Plaintiff’s administrative complaints. The Court will dismiss his civil rights

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complaint, with leave to amend, for several reasons discussed below, but principally

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because it (1) fails to provide any “short and plain” statement of any claim (and is well

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over 100 pages long), and (2) uses conclusory labels about Defendants’ actions without

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factual allegations to support those labels.

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I.

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THE COURT’S OBLIGATION TO SCREEN IN FORMA PAUPERIS FILINGS

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The Court must screen all complaints, including Plaintiff’s, brought in forma

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pauperis. See Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam); 28 U.S.C.

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§ 1915(e)(2) (screening of in forma pauperis actions generally). The law requires this

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Court to“dismiss the case if at any time it determines that . . . the action . . . (i) is frivolous

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or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks

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monetary relief from a defendant who is immune from such relief.”

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§ 1915(e)(2)(B).

28 U.S.C.

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A “complaint . . . must contain either direct or inferential allegations

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respecting all the material elements necessary to sustain recovery under some viable legal

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theory”; otherwise, it is subject to dismissal for failure to state a claim. See Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 562 (2007) (quoting, and including original emphasis

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from, Car Carriers Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). In

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Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court explained that Twombly

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effectively required more definite pleading of evidentiary facts, as opposed to conclusions

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or boilerplate. A court weighing dismissal in a civil rights action must determine whether

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the plaintiff has “plead[ed] factual matter that, if taken as true, states a claim that

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[defendants] deprived him of his clearly established constitutional rights[.]” Id. at 666.

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“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements

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of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked

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assertion[s]’ devoid of ‘further factual enhancement.’” Id. at 678 (citation omitted)

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(quoting Twombly, supra, 550 U.S. at 555, 557) (brackets as in Iqbal).

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A pro se plaintiff’s civil rights complaint must be construed liberally, and the

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plaintiff must be given leave to amend his complaint, “unless it is absolutely clear that the

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deficiencies of the complaint could not be cured by amendment.” Noll v. Carlson, 809

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F.2d 1446, 1448 (9th Cir. 1987). A dismissal with leave to amend is a non-dispositive

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matter within the purview of a Magistrate Judge. McKeever v. Block, 932 F.2d 795, 798

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(9th Cir. 1991).

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II.

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THE COMPLAINT IS FAR TOO LONG

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AND PROVIDES NO “SHORT AND PLAIN STATEMENT” OF ANY CLAIM

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Federal Rule of Civil Procedure 8(a) requires that “[a] pleading which sets

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forth a claim for relief . . . shall contain . . . a short and plain statement of the claim

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showing that the pleader is entitled to relief.” “A claim is the ‘aggregate of operative facts

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which give rise to a right enforceable in the courts.’” Bautista v. Los Angeles County, 216

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F.3d 837, 840 (9th Cir. 2000) (quoting Original Ballet Russe, Ltd. v. Ballet Theatre, Inc.,

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133 F.2d 187, 189 (2d Cir. 1943)). To comply with the Rule, a plaintiff must plead a short

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and plain statement of the elements of his or her claim, “identifying the transaction or

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occurrence giving rise to the claim and the elements of a prima facie case,” which

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elements, of course, will vary depending on the species of claim being asserted. See

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Bautista, 216 F.3d at 840.

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Here, the complaint is neither “short” nor “plain.” Although it has over 100

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pages, the exact number is difficult to ascertain, for Plaintiff improperly resets the page

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numbers to 1 every time he begins discussing another of his nine claims. Those claims

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appear to assert the following rights:

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Claims 1-5, 8:

Deliberate indifference to serious medical needs (Eighth
Amendment) by various groups of Defendants

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Claim 6:

Retaliation (First Amendment)

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Claim 7:

Violation of the Americans with Disabilities Act, although Plaintiff

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also cites deliberate medical indifference and violations of his Due

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Process and Equal Protection rights

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Claim 9:

Violation of Cal. Gov’t Code 845.6 (failing to provide immediatelyneeded medical care)
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It is not the complaint’s length per se that troubles the Court. What is troubling is how

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much shorter the pleading could be while thereby gaining much clarity. The Court refers

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Plaintiff to the following admonitions of Circuit Judge Arthur Alarcón:

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. . . Plaintiff must identify as a defendant only persons who personally

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participated in a substantial way in depriving plaintiff of a federal

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constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a

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person subjects another to the deprivation of a constitutional right if he does

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an act, participates in another’s act or omits to perform an act he is legally

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required to do that causes the alleged deprivation). If plaintiff contends he

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was the victim of a conspiracy, he must identify the participants and allege

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their agreement to deprive him of a specific federal constitutional right.

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...

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Plaintiff’s claims must be set forth in short and plain terms, simply,

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concisely and directly. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514,

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122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (“Rule 8(a) is the starting point of a

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simplified pleading system, which was adopted to focus litigation on the

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merits of a claim.”); FED. R. CIV. P. 8.

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Plaintiff must eliminate from plaintiff’s pleading all preambles,

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introductions, argument, speeches, explanations, stories, griping,

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vouching, evidence, attempts to negate possible defenses, summaries, and

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the like. McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996) (affirming

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dismissal of § 1983 complaint for violation of Rule 8 after warning); see

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Crawford-El v. Britton, 523 U.S. 574, 597, 118 S.Ct. 1584, 140 L.Ed.2d 759

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(1998) (reiterating that “firm application of the Federal Rules of Civil

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Procedure is fully warranted” in prisoner cases).

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A district court must construe pro se pleading “liberally” to determine

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if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his
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complaint and give a plaintiff an opportunity to cure them. See Lopez v.

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Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). However, the “[f]actual

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allegations must be enough to raise a right to relief above the speculative

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level on the assumption that all the allegations in the complaint are true (even

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if doubtful in fact).” Bell Atlantic Corporation v. Twombly, 550 U.S. 544,

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555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted).

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The court (and any defendant) should be able to read and

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understand Plaintiff’s pleading within minutes. McHenry, 84 F.3d at

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1177.

A long, rambling pleading, including many defendants with

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unexplained, tenuous or implausible connection to the alleged constitutional

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injury or joining a series of unrelated claims against many defendants very

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likely will result in delaying the review required by 28 U.S.C. § 1915 and an

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order dismissing plaintiff’s action pursuant to FED. R. CIV. P. 41 for violation

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of these instructions.

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Clayburn v. Schirmer, No. CIV S 06-2182 ALA P, 2008 WL 564958, slip op. at 3-4 (E.D.

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Cal. Feb. 28, 2008) (Alarcón, Circuit J., sitting by designation) (emphasis in bold added).

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What is a “short and plain” statement of a claim? The Ninth Circuit in

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McHenry, one of the cases cited by Circuit Judge Alarcón above, illustrated this by

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quoting from an official federal form, one for negligence, as follows:

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The complaints in the official Appendix of Forms are dramatically short and

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plain. For example, the standard negligence complaint consists of three short

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paragraphs:

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1.

[Allegation of jurisdiction.]

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2.

On June 1, 1936, in a public highway called Boylston

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Street in Boston, Massachusetts, defendant negligently drove a
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motor vehicle against plaintiff, who was then crossing said

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highway.

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3.

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broken, and was otherwise injured, was prevented from

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transacting his business, suffered great pain of body and mind,

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and incurred expenses for medical attention and hospitalization

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in the sum of one thousand dollars.

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As a result plaintiff was thrown down and had his leg

Wherefore plaintiff demands judgment against defendant
in the sum of _____ dollars and costs.

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FED. R. CIV.P. Form 9. This complaint fully sets forth who is being sued, for

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what relief, and on what theory, with enough detail to guide discovery. It can

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be read in seconds and understood in minutes.

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McHenry, 84 F.3d at 1177. “By contrast,” the McHenry court lamented, “the complaint

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in the case at bar is argumentative, prolix, replete with redundancy and largely irrelevant.

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It consists largely of immaterial background information.” Id.

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Just so here. For example, Plaintiff presents Claim 1 as follows, with the
form complaint’s text in {braces}:

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{The following civil right has been violated:}

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On: 3-21-2013, 11-8-2013, 5-19-2014, prison personnel violated plaintiff’s

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Eighth Amendment Rights to be Free From cruel and unusual punishment

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guaranteed to the plaintiff by the Eighth Amendment of the United States

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Constitution by their actions of intentionally denying plaintiff access to

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adequate medical care, refusing to furnish proper medical care, medicines,

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diagnosis and treatments, [and] that as a result plaintiff has suffered

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aggravation and permanent injury to a pre-existing condition, and other
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unnecessary physical harm, defendants’ actions was [sic] without a legitimate

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penological motivation or correctional goals, thus being deliberate indifferent

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to (plaintiff’s) a prisoner’s serious medical needs, in violation of the Eighth

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Amendment of the United States Constitution.

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Plaintiff could and should have simply answered, “Deliberate medical indifference in

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violation of the Eighth Amendment.” Less is sometimes more. This manner of pleading

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continues throughout the complaint. To avoid repetition of this kind of pleading, any First

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Amended Complaint (1AC) shall not exceed 30 consecutively numbered pages. (The

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1AC may refer to the exhibits and other supporting materials that Plaintiff presented with

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the initial complaint, but Plaintiff shall not re-file any materials already on file.)

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III.

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THE COMPLAINT CONSISTS OF LEGAL CONCLUSIONS AND DATES

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WITHOUT UNDERLYING FACTUAL ALLEGATIONS IN SUPPORT

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As noted above, when the Court reviews the sufficiency of a civil rights

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complaint, it considers whether the plaintiff has “plead[ed] factual matter that, if taken as

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true, states a claim that [defendants] deprived him of his clearly established constitutional

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rights[.]” Iqbal, supra, 556 U.S. at 666. “A pleading that offers ‘labels and conclusions’

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or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a

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complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

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enhancement.’” Id. at 678 (citation omitted) (quoting Twombly, supra, 550 U.S. at 555,

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557) (brackets as in Iqbal).

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The complaint plainly fails the Iqbal test. Plaintiff presents little more than

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conclusory legal terms attached to a few names and dates. For example, after the above-

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quoted introduction to Claim 1 and a paragraph about his pre-existing conditions, Plaintiff

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continues the claim as follows:

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Defendant Kirk A. Torres, M.D. on 11-8-2011 - 5-23-2013. Violated

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Plaintiff's rights to be Free From cruel and unusual punishment guaranteed

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to the Plaintiff by the United States Constitution by his actions of

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intentionally denying Plaintiff access to medical care, the Denial,

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Confiscation and discontinuation of Plaintiff’s previously prescribed Health

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care appliances, intentionally, knowingly and maliciously inflicted physical

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injury, abuse and humiliation on Plaintiff, unnecessary and wanton infliction

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of pain, including injury and psychological and emotional distress, thus being

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deliberate indifference to a prisoner’s (Plaintiff's) serious medical needs,

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depriving plaintiff of rights, adequate medical care and treatment, benefits

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and privileges secured by the United States Constitution.

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The next paragraph simply moves on to discuss another defendant rather than explaining

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the above conclusions about Dr. Torres. Thus, entirely missing is any allegation of just

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what actions or omissions by Dr. Torres support a deliberate indifference claim or any

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other claim. (Plaintiff asserts similarly deficient allegations with respect to the other

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defendants.) This pleading-by-label continues throughout the complaint’s many scores of

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pages in hundreds of similar wall-of-text paragraphs. Plaintiff repeatedly alleges that a

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given defendant discontinued or denied treatments (or failed to overrule others who did

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so) and sometimes alleges the date(s) on which this occurred. But he simply concludes

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that the defendants’ actions were deliberately indifferent or were a form of improper

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retaliation. Similarly, in Claim 7, Plaintiff alleges that Dr. Torres violated Plaintiff’s rights

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“by discontinuing ALL (on: 11-30-2011) of Plaintiff’s medical necessity care,” but

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Plaintiff fails to allege any facts from which one might conclude that Torres’s

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discontinuation was wrongful, let alone knowingly so. In any amended complaint,

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Plaintiff must allege facts – preferably largely in chronological order – based upon which

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one reasonably could conclude that each defendant violated Plaintiff’s civil rights.

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IV.

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OTHER INFIRMITIES MAY EXIST

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The foregoing flaws may not be an exhaustive list. But the flaws already

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noted, particularly the long, repetitive and conclusory nature of the complaint, make it

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unreasonably difficult for the Court to screen for additional shortcomings.

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V.

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CONCLUSION
Based on the foregoing, the Court hereby DISMISSES the complaint, and

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leave to amend is granted. More specifically, Plaintiff has three options:

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(1)

Plaintiff may pursue this action further by filing an original and one copy of a

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pleading captioned as his First Amended Complaint (1AC), bearing the current case

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number, within 30 days of the filing date of this Order. To withstand another

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dismissal, the 1AC must correct the deficiencies identified in this Order – including

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the 20-page length limitation, among others – and must comply with the Federal

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Rules of Civil Procedure and this Court’s Local Rules. The 1AC must be complete

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in itself and must not refer to any prior version of the complaint.

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(2)

Plaintiff may file a “Notice of Intent Not to Amend Complaint” within 30 days

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of the filing date of this Order. If Plaintiff timely files such a Notice, then the

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undersigned will recommend to the assigned District Judge that this action be

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dismissed, freeing Plaintiff to appeal the dismissal on the grounds cited above. See

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Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063-66 (9th Cir. 2004).

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(3)

Plaintiff may do nothing in response to this Order. If Plaintiff does not file a

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document pursuant to either option 1 or 2 above within the 30-day deadline, then

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the Court shall deem him to have consented to dismissal of this action for failure to

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prosecute and for failure to comply with this Order. See id.

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The Court cautions Plaintiff that if he fails to file a timely amended

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complaint or otherwise fails to comply substantially with the terms of this Order,

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then this action may be dismissed.

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IT IS SO ORDERED.

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DATED: 12/12/2014

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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE

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