Cesar Uribe v. Tim Perez, et al

Filing 14

ORDER DISMISSING FIRST AMENDED COMPLAINT, 13 WITH LEAVE TO AMEND by Magistrate Judge Alka Sagar. If Plaintiff still wishes to pursue this action, he shall file a Second Amended Complaint no later than 30 days from the date of this Order. Plaintiff is further advised that if he no longer wishes to pursue this action in its entirety or with respect to particular Defendants or claims, he may voluntarily dismiss all or any part of this action by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). (Attachments: # 1 Civil Rights Complaint Form (Blank), # 2 Notice Of Dismissal Form (Blank)) (mz)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ) No. CV 5:17-00558-CJC (AS) ) ) ) ORDER DISMISSING FIRST AMENDED ) ) COMPLAINT WITH LEAVE TO AMEND ) ) ) ) CESAR URIBE, 11 Plaintiff, 12 13 v. T. PEREZ, et al., 14 Defendants. 15 16 I. 17 INTRODUCTION 18 19 Plaintiff Cesar Uribe (“Plaintiff”), an inmate at the California 20 Institute for Men (CIM) in Chino, California, proceeding pro se, 21 filed a First Amended Complaint on September 25, 2017, (Docket Entry 22 No. 13 (“FAC”)), following the Court’s dismissal of his original 23 Complaint with leave to amend on April 18, 2017, (Docket Entry No. 24 6).1 25 his 26 42 27 28 Plaintiff seeks relief, in relevant part, for the violation of federal U.S.C. constitutional rights, which are redressable under § 1983. 1 Plaintiff filed the case in California state court on February 11, 2016, and Defendants filed a notice of removal on March 23, 2017, pursuant to 28 U.S.C. § 1441(a). (Docket Entry No. 2). 1 The Court has screened the Complaint as prescribed by 28 U.S.C. 1 2 § 1915A and 42 U.S.C. § 1997e. For the reasons discussed below, the 3 Court DISMISSES Plaintiff’s Complaint WITH LEAVE TO AMEND.2 4 II. 5 ALLEGATIONS OF THE FIRST AMENDED COMPLAINT 6 7 The First Amended Complaint names the following Defendants in 8 their individual and official capacities: (1) Louie Escobell, CEO 9 (“Escobell”); (2) Muhammad A. Farooq, CMO (“Farooq”); (3) Larry 10 Maldonado, CHSA II (“Maldonado”); (4) Jose Serrano, CNE (“Serrano”); 11 (5) 12 Warden (“LeMaster”). 13 individual 14 (“Christofferson”); (2) Captain R. Franco (“Franco”); (3) Lieutenant 15 C.T. 16 (“Williams”). 17 Plaintiff states that Does 1-10 are prison medical staff members and 18 that Does 11-20 are prison custody staff members. 19 states that the “true names and capacities” of the Doe defendants 20 “are presently unknown” to him, but he “will seek leave to amend” his 21 pleading when he ascertains this information.3 Tim Perez, Warden (“Perez”); (6) B. LeMaster, Associate He also names the following Defendants in their capacities: Stansbury and (1) (“Stansbury”); J. and Christofferson, (4) Lieutenant SRN D. II Williams In addition, he names as Defendants John Does 1-20. (FAC at 4). He (Id.). 22 2 23 24 25 26 27 28 Magistrate judges may dismiss a complaint with leave to amend without approval from the district judge. McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 3 The Court previously advised Plaintiff that he is responsible for providing sufficient identifying information about these fictitious Defendants before the Court can order service of process by the United States Marshall upon such Defendants, and may be required to conduct discovery to determine their identities if he pursues this action. See Gillespie v. Civiletti, 629 F.2d 637, 642-43 (9th Cir. 1980). 2 1 Plaintiff alleges actions that, and while inactions he was inmate him to at CIM, 2 Defendants’ 3 norovirus. 4 Medical” (“HRM”) facility at which he was housed in dorm A8. 5 4, 7). 6 “created and implemented the practice of specifically and randomly 7 designating Facility A 8 quarantine inmates with 9 contagious diseases, such as the norovirus.” (Id. at 4-8). caused an contract the Plaintiff alleges that CIM is a “High Risk (Id. at He claims that Escobell, Farooq, Maldonado, and Does 1-5 dorms as makeshift highly ‘quarantine infectious, dorms’ communicable, (Id. at 5). to and He asserts 10 that that “[t]hese defendants knew that Facility A dorms were not 11 designed or built to be quarantine dorms nor are they modified for 12 quarantine 13 purposes.” 14 Plaintiff, “knew of this practice and approved it or ratified it.” 15 (Id. at 6). of inmates (Id.). when designated and used for quarantine Perez, Lemaster, and Does 11-15, according to 16 17 Plaintiff claims that on or about “November of 2014, HRM inmates 18 at CIM Facility A, dorm A6, contracted norovirus.” 19 alleges that Stansbury, Williams, and Does 16-20 knew about this, and 20 Franco, 21 Christofferson, and Does 1-10 were also “notified” about it. 22 Plaintiff 23 Maldonado, Serrano, and Does 1-5 “ordered” Christofferson and Does 6- 24 10 “to designate dorm A6 as a quarantine dorm” and follow the alleged 25 procedures. 26 approval” of Perez, Lemaster, Franco, and Does 11-15. 27 this approach, Plaintiff claims that Defendants forced uninfected 28 inmates Perez, Lemaster, alleges to that, (Id.) interact Escobell, to This and be address was Farooq, the ordered housed 3 with Plaintiff Maldonado, matter, “with (Id.). Serrano, Escobell, the infected (Id.). Farooq, knowledge (Id.) inmates and Under without 1 providing the inmates with care or protection to prevent the virus 2 from 3 infected inmates were moved to other dorms, including A8, Plaintiff’s 4 dorm. 5 2014, he contracted norovirus, suffering various symptoms, including 6 “an 7 persistent 8 aches, fever, persistent diarrhea, and weight loss, that rendered 9 [him] incapacitated and bed-ridden because of the headaches, muscle 10 pain, lethargy, and depletion of energy caused by repeated vomiting 11 and diarrhea.” spreading further. (Id. at 7). immediate (Id. at 6-7). Plaintiff alleges that Plaintiff claims that on or about December 12, unforeseen vomiting, and sudden onset stomach cramps and of pain, queasiness, muscle nausea, pain, body (Id. at 8). 12 Plaintiff asserts five “claims” against Defendants, but only the 13 14 first claim 15 Specifically, 16 violation 17 substantial risk of harm.” 18 against all Defendants, is a claim for intentional tortious conduct 19 in violation of California Civil Code §§ 52.1(b) and 52(a). 20 The 21 declaring that Defendants’ “policies, practices, acts, and omissions” 22 – including forcing Plaintiff and others “to share dining halls, 23 dorms, 24 norovirus-infected inmates” – violate Plaintiff’s rights under the 25 Eighth 26 fourth claim is a negligence claim against Perez, Lemaster, Escobell, 27 Farooq, Serrano, Maldonado, and Does 1-5 and 11-15 for failing, among 28 other third is of brought under federal law. the first claim, against all the Eighth claim medical and seeks things, to for work and Amendments. implement relief and 4 enforce to 9-12). is protect for from The second claim, also against education (Id. at Defendants, “failure (Id. at 9). declaratory clinics, Fourteenth Amendment (Id. at all areas 10-11). adequate (Id.). Defendants, with known Plaintiff’s policies and 1 procedures to protect Plaintiff and other inmates from the spread of 2 infections. 3 negligence claim against Franco, Stansbury, Williams, Christofferson, 4 and 5 Plaintiff and others from the norovirus despite having “immediate and 6 direct control” over the inmates. Does (Id. 6-10 at and 11-12). 16-20 The for fifth failing in and final their duty claim to is a protect (Id. at 12). 7 III. 8 STANDARD OF REVIEW 9 10 Congress mandates that district courts initially screen civil 11 complaints filed by prisoners seeking redress from a governmental 12 entity or employee. 13 complaint, or any portion thereof if the court concludes that the 14 complaint: (1) is frivolous or malicious; (2) fails to state a claim 15 upon which relief may be granted; or (3) seeks monetary relief from a 16 defendant who is immune from such relief. 17 (2); see also Lopez v. Smith, 203 F.3d 1122, 1126–27 & n.7 (9th Cir. 18 2000) (en banc). 28 U.S.C. § 1915A. A court may dismiss such a 28 U.S.C. § 1915A(b)(1)– 19 20 Dismissal for failure to state a claim is appropriate if a 21 complaint fails to proffer “enough facts to state a claim for relief 22 that is plausible on its face.” 23 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 24 claim 25 content that allows the court to draw the reasonable inference that 26 the defendant is liable for the misconduct alleged.” 27 at 678; see also Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 28 1114, 1122 (9th Cir. 2013). has facial plausibility Bell Atl. Corp. v. Twombly, 550 U.S. when the plaintiff pleads “A factual Iqbal, 556 U.S. A plaintiff must provide “more than 5 1 labels and conclusions” or a “formulaic recitation of the elements” 2 of his claim. 3 However, “[s]pecific facts are not necessary; the [complaint] need 4 only ‘give the defendant fair notice of what the . . . claim is and 5 the grounds upon which it rests.’” 6 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. Erickson v. Pardus, 551 U.S. 89, 7 In 8 considering whether to dismiss a complaint, a court is 9 generally limited to the pleadings and must construe all “factual 10 allegations set forth in the complaint . . . as true and . . . in the 11 light most favorable” to the plaintiff. 12 F.3d 668, 688 (9th Cir. 2001). 13 liberally construed” and held to a less stringent standard than those 14 drafted by a lawyer. 15 Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (“Iqbal incorporated the 16 Twombly pleading standard and Twombly did not alter courts’ treatment 17 of 18 filings liberally when evaluating them under Iqbal.”). 19 dismissal for failure to state a claim can be warranted based on 20 either 21 factual pro se the filings; lack Moreover, pro se pleadings are “to be Erickson, 551 U.S. at 94; see also Hebbe v. accordingly, cognizable continue se Nevertheless, 22 Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A 23 complaint may also be dismissed for failure to state a claim if it 24 discloses some fact or complete defense that will necessarily defeat 25 the claim. 26 1984). legal or pro v. cognizable theory construe Mendiondo a legal to of for a we absence support of Lee v. City of L.A., 250 theory. the Franklin v. Murphy, 745 F.2d 1221, 1228–29 (9th Cir. 27 28 6 IV. 1 DISCUSSION 2 While Plaintiff’s First Amended Complaint appears to remedy some 3 4 of the defects in 5 deficiencies 6 the U.S.C. 1915A(b)(1). warranting original dismissal Complaint, with leave it to still amend.4 contains See 28 7 8 In particular, the First Amended Complaint does not comply with 9 the pleading standards of Rules 8 and 10 of the Federal Rules of 10 Civil Procedure. Rule 8 requires a pleading to contain “a short and 11 plain statement of the claim showing that [plaintiff] is entitled to 12 relief.” 13 concise, and direct.” 14 requires each paragraph to be “limited as far as practicable to a 15 single set of circumstances.” Fed. R. Civ. P. 8(a)(2). “Each allegation must be simple, Fed. R. Civ. P. 8(d)(1). Rule 10, moreover, Fed. R. Civ. P. 10(b). 16 17 Here, Plaintiff fails to clearly convey the basis for each of 18 his claims and to sufficiently advise Defendants of the claims and 19 allegations being asserted against each of them. 20 claim,” for example, is labeled as a claim against all Defendants for Plaintiff’s “first 21 22 23 24 25 26 27 28 4 Under 28 U.S.C. § 1367(a), if a district court has original jurisdiction over one or more claims, the court also has supplemental jurisdiction over all state law claims that arise out of the same transaction or occurrence. 28 U.S.C. § 1367(a). However, if all federal claims have been dismissed, the district court no longer has supplemental jurisdiction over the state law claims. Id. Here, the Court has dismissed all of Plaintiff’s federal claims with leave to amend. As a result, the court no longer has jurisdiction over Plaintiff’s tort claims of intentional conduct and general negligence and claims for violations of California Civil Code violations. Accordingly, Plaintiff’s state law claims are dismissed without prejudice. 7 1 violation 2 substantial risk of harm.” 3 only that it “allege[] and incorporate[] . . . by reference” the 4 allegations 5 Defendants to guess which particular allegations among the twenty- 6 7 of the of Eighth all Amendment for (FAC at 9). preceding “failure to protect from The claim, however, states paragraphs, leaving the seven preceding paragraphs might form a basis for relief. Court (Id.) and The other four claims in the First Amended Complaint (for state law 8 violations and declaratory relief) contain more specific support, but 9 they, too, “incorporate[]” the allegations of all preceding 10 paragraphs, including the paragraphs of preceding claims, making it 11 impossible to discern which particular allegations are at issue in 12 13 each individual claim. (Id. at 12). 14 15 In addition, many of Plaintiff’s factual allegations are set 16 forth in lengthy paragraphs containing multiple assertions, which 17 will make it difficult for Defendants to respond effectively in an 18 Answer. 19 shorter, simpler paragraphs of no more than a sentence or two each. Such paragraphs should be consolidated or broken down into 20 V. 21 CONCLUSION 22 23 24 For the reasons discussed above, the Court DISMISSES Plaintiff’s claims WITH LEAVE TO AMEND. 25 26 If Plaintiff still wishes to pursue this action, he shall file a 27 Second Amended Complaint no later than 30 days from the date of this 28 Order. The Second Amended Complaint must cure the pleading defects 8 1 discussed above and shall be complete in itself without reference to 2 prior pleadings. 3 matter of right or allowed by order of the Court shall be complete 4 including exhibits. 5 prior, 6 allege and plead any viable claims he wishes to retain in the case. See L.R. 15-2 (“Every amended pleading filed as a superseding The amended pleading shall not refer to the pleading.”). This means that Plaintiff must 7 8 In any amended complaint, Plaintiff should identify the nature 9 of each separate legal claim and confine his allegations to those 10 operative facts supporting each of his claims. 11 legal claim, Plaintiff should state the civil right that has been 12 violated and the supporting facts for that claim only. 13 Federal Rule of Civil Procedure 8(a), all that is required is a 14 “short and plain statement of the claim showing that the pleader is 15 entitled 16 allegations in the Second Amended Complaint should be consistent with 17 the authorities discussed above. 18 Complaint may not include new Defendants or claims not reasonably 19 related 20 Plaintiff is strongly encouraged to once again utilize the standard 21 civil rights complaint form when filing any amended complaint, a copy 22 of which is attached. to to relief.” the However, allegations in Plaintiff is For each separate Pursuant to advised that the In addition, the Second Amended the previously filed complaints. 23 24 Plaintiff is explicitly cautioned that failure to timely file a 25 Second Amended Complaint, 26 described above, may result in a recommendation that this action, or 27 portions 28 prosecute and/or failure to comply with court orders. thereof, be or failure dismissed with 9 to correct the deficiencies prejudice for failure to See Fed. R. 1 Civ. P. 41(b). Plaintiff is further advised that if he no longer 2 wishes to pursue this action in its entirety or with respect to 3 particular Defendants or claims, he may voluntarily dismiss all or 4 any part of this action by filing a Notice of Dismissal in accordance 5 with Federal Rule of Civil Procedure 41(a)(1). 6 Dismissal is attached for Plaintiff’s convenience. A form Notice of 7 8 IT IS SO ORDERED. 9 10 Dated: October 12, 2017 11 12 13 ______________/s/_____________ ALKA SAGAR United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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