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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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) No. CV 5:17-00558-CJC (AS)
)
)
) ORDER DISMISSING FIRST AMENDED
)
) COMPLAINT WITH LEAVE TO AMEND
)
)
)
)

CESAR URIBE,
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Plaintiff,
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v.
T. PEREZ, et al.,

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Defendants.

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I.

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INTRODUCTION

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Plaintiff Cesar Uribe (“Plaintiff”), an inmate at the California

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Institute for Men (CIM) in Chino, California, proceeding pro se,

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filed a First Amended Complaint on September 25, 2017, (Docket Entry

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No. 13 (“FAC”)), following the Court’s dismissal of his original

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Complaint with leave to amend on April 18, 2017, (Docket Entry No.

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6).1

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his

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42

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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).
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The Court has screened the Complaint as prescribed by 28 U.S.C.

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§ 1915A and 42 U.S.C. § 1997e.

For the reasons discussed below, the

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Court DISMISSES Plaintiff’s Complaint WITH LEAVE TO AMEND.2

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II.

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ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

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The First Amended Complaint names the following Defendants in

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their individual and official capacities: (1) Louie Escobell, CEO

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(“Escobell”);

(2)

Muhammad

A.

Farooq,

CMO

(“Farooq”);

(3)

Larry

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Maldonado, CHSA II (“Maldonado”); (4) Jose Serrano, CNE (“Serrano”);

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(5)

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Warden (“LeMaster”).

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individual

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(“Christofferson”); (2) Captain R. Franco (“Franco”); (3) Lieutenant

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C.T.

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(“Williams”).

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Plaintiff states that Does 1-10 are prison medical staff members and

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that Does 11-20 are prison custody staff members.

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states that the “true names and capacities” of the Doe defendants

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“are presently unknown” to him, but he “will seek leave to amend” his

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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.).

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2

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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,

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Defendants’

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norovirus.

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Medical” (“HRM”) facility at which he was housed in dorm A8.

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4, 7).

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“created and implemented the practice of specifically and randomly

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designating

Facility

A

8

quarantine

inmates

with

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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

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that that “[t]hese defendants knew that Facility A dorms were not

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designed or built to be quarantine dorms nor are they modified for

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quarantine

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purposes.”

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Plaintiff, “knew of this practice and approved it or ratified it.”

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(Id. at 6).

of

inmates

(Id.).

when

designated

and

used

for

quarantine

Perez, Lemaster, and Does 11-15, according to

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Plaintiff claims that on or about “November of 2014, HRM inmates

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at CIM Facility A, dorm A6, contracted norovirus.”

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alleges that Stansbury, Williams, and Does 16-20 knew about this, and

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Franco,

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Christofferson, and Does 1-10 were also “notified” about it.

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Plaintiff

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Maldonado, Serrano, and Does 1-5 “ordered” Christofferson and Does 6-

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10 “to designate dorm A6 as a quarantine dorm” and follow the alleged

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procedures.

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approval” of Perez, Lemaster, Franco, and Does 11-15.

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this approach, Plaintiff claims that Defendants forced uninfected

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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

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from

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infected inmates were moved to other dorms, including A8, Plaintiff’s

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dorm.

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2014, he contracted norovirus, suffering various symptoms, including

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“an

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persistent

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aches, fever, persistent diarrhea, and weight loss, that rendered

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[him] incapacitated and bed-ridden because of the headaches, muscle

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pain, lethargy, and depletion of energy caused by repeated vomiting

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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).

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Plaintiff asserts five “claims” against Defendants, but only the

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first

claim

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Specifically,

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violation

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substantial risk of harm.”

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against all Defendants, is a claim for intentional tortious conduct

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in violation of California Civil Code §§ 52.1(b) and 52(a).

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The

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declaring that Defendants’ “policies, practices, acts, and omissions”

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– including forcing Plaintiff and others “to share dining halls,

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dorms,

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norovirus-infected inmates” – violate Plaintiff’s rights under the

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Eighth

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fourth claim is a negligence claim against Perez, Lemaster, Escobell,

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Farooq, Serrano, Maldonado, and Does 1-5 and 11-15 for failing, among

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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

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infections.

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negligence claim against Franco, Stansbury, Williams, Christofferson,

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and

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Plaintiff and others from the norovirus despite having “immediate and

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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).

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III.

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STANDARD OF REVIEW

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Congress mandates that district courts initially screen civil

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complaints filed by prisoners seeking redress from a governmental

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entity or employee.

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complaint, or any portion thereof if the court concludes that the

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complaint: (1) is frivolous or malicious; (2) fails to state a claim

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upon which relief may be granted; or (3) seeks monetary relief from a

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defendant who is immune from such relief.

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(2); see also Lopez v. Smith, 203 F.3d 1122, 1126–27 & n.7 (9th Cir.

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2000) (en banc).

28 U.S.C. § 1915A.

A court may dismiss such a

28 U.S.C. § 1915A(b)(1)–

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Dismissal for failure to state a claim is appropriate if a

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complaint fails to proffer “enough facts to state a claim for relief

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that is plausible on its face.”

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544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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claim

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content that allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.”

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at 678; see also Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d

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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
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1

labels and conclusions” or a “formulaic recitation of the elements”

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of his claim.

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However, “[s]pecific facts are not necessary; the [complaint] need

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only ‘give the defendant fair notice of what the . . . claim is and

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the grounds upon which it rests.’”

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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,

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In

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considering

whether

to

dismiss

a

complaint,

a

court

is

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generally limited to the pleadings and must construe all “factual

10

allegations set forth in the complaint . . . as true and . . . in the

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light most favorable” to the plaintiff.

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F.3d 668, 688 (9th Cir. 2001).

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liberally construed” and held to a less stringent standard than those

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drafted by a lawyer.

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Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (“Iqbal incorporated the

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Twombly pleading standard and Twombly did not alter courts’ treatment

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of

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filings liberally when evaluating them under Iqbal.”).

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dismissal for failure to state a claim can be warranted based on

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either

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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,

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Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).

A

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complaint may also be dismissed for failure to state a claim if it

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discloses some fact or complete defense that will necessarily defeat

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the claim.

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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.

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IV.

1

DISCUSSION

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While Plaintiff’s First Amended Complaint appears to remedy some

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of

the

defects

in

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deficiencies

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the

U.S.C. 1915A(b)(1).

warranting

original

dismissal

Complaint,
with

leave

it
to

still
amend.4

contains
See

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In particular, the First Amended Complaint does not comply with

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the pleading standards of Rules 8 and 10 of the Federal Rules of

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Civil Procedure.

Rule 8 requires a pleading to contain “a short and

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plain statement of the claim showing that [plaintiff] is entitled to

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relief.”

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concise, and direct.”

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requires each paragraph to be “limited as far as practicable to a

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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).

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Here, Plaintiff fails to clearly convey the basis for each of

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his claims and to sufficiently advise Defendants of the claims and

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allegations being asserted against each of them.

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claim,” for example, is labeled as a claim against all Defendants for

Plaintiff’s “first

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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.
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1

violation

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substantial risk of harm.”

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only that it “allege[] and incorporate[] . . . by reference” the

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allegations

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Defendants to guess which particular allegations among the twenty-

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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

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violations and declaratory relief) contain more specific support, but
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they,

too,

“incorporate[]”

the

allegations

of

all

preceding

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paragraphs, including the paragraphs of preceding claims, making it
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impossible to discern which particular allegations are at issue in
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each individual claim.

(Id. at 12).

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In addition, many of Plaintiff’s factual allegations are set

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forth in lengthy paragraphs containing multiple assertions, which

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will make it difficult for Defendants to respond effectively in an

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Answer.

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shorter, simpler paragraphs of no more than a sentence or two each.

Such paragraphs should be consolidated or broken down into

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V.

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CONCLUSION

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For the reasons discussed above, the Court DISMISSES Plaintiff’s
claims WITH LEAVE TO AMEND.

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If Plaintiff still wishes to pursue this action, he shall file a

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Second Amended Complaint no later than 30 days from the date of this

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Order.

The Second Amended Complaint must cure the pleading defects
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discussed above and shall be complete in itself without reference to

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prior pleadings.

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matter of right or allowed by order of the Court shall be complete

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including exhibits.

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prior,

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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

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In any amended complaint, Plaintiff should identify the nature

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of each separate legal claim and confine his allegations to those

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operative facts supporting each of his claims.

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legal claim, Plaintiff should state the civil right that has been

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violated and the supporting facts for that claim only.

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Federal Rule of Civil Procedure 8(a), all that is required is a

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“short and plain statement of the claim showing that the pleader is

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entitled

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allegations in the Second Amended Complaint should be consistent with

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the authorities discussed above.

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Complaint may not include new Defendants or claims not reasonably

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related

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Plaintiff is strongly encouraged to once again utilize the standard

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civil rights complaint form when filing any amended complaint, a copy

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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.

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Plaintiff is explicitly cautioned that failure to timely file a

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Second

Amended

Complaint,

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described above, may result in a recommendation that this action, or

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portions

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prosecute and/or failure to comply with court orders.

thereof,

be

or

failure

dismissed

with

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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

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wishes to pursue this action in its entirety or with respect to

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particular Defendants or claims, he may voluntarily dismiss all or

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any part of this action by filing a Notice of Dismissal in accordance

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with Federal Rule of Civil Procedure 41(a)(1).

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Dismissal is attached for Plaintiff’s convenience.

A form Notice of

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IT IS SO ORDERED.

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Dated: October 12, 2017

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______________/s/_____________
ALKA SAGAR
United States Magistrate Judge

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