Cesar Uribe v. Tim Perez, et al

Filing 6

ORDER DISMISSING COMPLAINT, 2 WITH LEAVE TO AMEND by Magistrate Judge Alka Sagar. The Court DISMISSES Plaintiffs claims WITH LEAVE TO AMEND. If Plaintiff still wishes to pursue this action, he shall file a First Amended Complaint no later than 30 d ays 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, # 2 Notice of Dismissal Form) (mz)

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

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CESAR URIBE,
11

Plaintiff,
12
13

v.
T. PEREZ, et al.,

14

Defendants.

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16

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

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18

INTRODUCTION
19
20

Plaintiff Cesar Uribe (“Plaintiff”), an inmate at the California
21

Institute for Men (CIM) in Chino, California, filed this pro se civil
22

action in San Bernardino County Superior Court on February 11, 2016.
23

Plaintiff seeks relief, in relevant part, for the violation of his
24

federal

constitutional

rights,

which

are

redressable

under

25

42

U.S.C.

§ 1983.

The Complaint names as Defendants: (1) Louie

26

Escobell, CEO; (2) Muhammad A. Farooq, CMO; (3) Larry Maldonado, CHSA
27

II; (4) Jose Serrano, CNE; (5) J. Christofferson, SRN II; (6) Tim
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1

1

Perez, Warden; (7) B. LeMaster[], Associate Warden; (8) Captain R.

2

Franco; (9) Lieutenant C.T. Stansbury; (10) Lieutenant D. Williams;

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and (11) DOES 1-20.

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Plaintiff states that DOES 1-5 were, during the relevant time,

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6

employed

by

7

Rehabilitation (“CDCR”) as Chief Executive Officers, Chief Medical

8

Officers

9

supervisors of medical staff at CIM.

or

the

California

Executives,

or

Department

Health

of

Corrections

Services

Administrators,

(Compl. 5).

and

or

Plaintiff further

10

states that DOES 6-10 and 11-20 were at all relevant times employed

11

by CDCR and were the commanding officers of CIM Facility A.

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6).

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with DOES 1-5, for ensuring that all CIM medical and custodial staff,

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including

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professional, and applicable laws.

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in their individual and official capacities.

(Compl.

Plaintiff also states that DOES 11-15 were responsible, along

medical

care

contractors,

complied

(Compl. 6).

with

ethical,

Defendants are sued

(Id.).

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18

Defendants J. Serrano, L. Maldonado, L. Escobell, B. LeMaster,

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M. Farooq, C. Stansbury, J. Christofferson, D. Williams and T. Perez

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(“Defendants”) filed a notice of removal on March 23, 2017, pursuant

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to

28 U.S.C. § 1441(a).

(Docket Entry No. 2).

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23

Plaintiff alleges that Defendants violated his Eighth Amendment

24

right

“to

be

25

California and U.S. Constitutions” (Compl. 11) when they engaged in

26

conduct

27

disregard

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rights” (Compl. 7) which led to Plaintiff contracting the “norovirus

that
for,

free

was

from

cruel

and

“intentional,

and/or

unusual

and/or

deliberate

punishment

was

indifference

2

done

under

with

toward,

the

reckless

plaintiff’s

1

on or about December 12, 2014 and suffer[ing] all of its symptoms”.

2

(Compl. 9).

3

Plaintiff also alleges that Defendants are civilly liable in

4
5

torts

for

(1)

“Intentional”

6

General Negligence (Compl. 4, 13-16) and that Defendants are liable

7

for

8

(Compl. 11).

violations

of

conduct

California

Civil

(Compl.

Code

4,

§§

11-12);

52.1(b)

and

and

(2)

52(a).

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Plaintiff requests declaratory relief against Defendants Perez,

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11

LeMaster[],

Escobell,

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Specifically, Plaintiff seeks, in part, a judgment declaring that

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Defendants’

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rights.

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injunctive relief prohibiting defendants from continuing to engage in

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the

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general

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damages as allowed by law, “including statutory and treble damages

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under California Civil Code §§ 52 and 52.1”; (5) attorneys’ fees and

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costs; (6) the costs of suit; and (7) such other and further relief

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as the Court deems just and proper.

policies,
(Id.).

specific

(3)

and

practices,

Plaintiff

unlawful

damages;

Farooq,

acts

further

practices
$25,000

DOES

and

punitive

(Compl.

omissions

requests

complained

of

1-5.

of”;

violate

(1)

his

“[p]ermanent

(2)

damages;

12).

$50,441

(4)

of

statutory

(Compl. 18).

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23

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

24

§ 1915A and 42 U.S.C. § 1997e.

25

Court DISMISSES Plaintiff’s Complaint WITH LEAVE TO AMEND.1

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27

For the reasons discussed below, the

1

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).

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3

PLAINTIFF’S ALLEGATIONS

1
2

Plaintiff

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alleges

that,

while

he

was

an

inmate

at

CIM,

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Defendants’ actions and, where applicable, inactions caused him to

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contract the norovirus.

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is a “High Risk Medical” (“HRM”) facility at which he was housed in

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dorm A8.

8

HRM

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(Id.).

(Compl. 8).

inmates

at

CIM

(Compl. 5-10).

Plaintiff alleges that CIM

He claims that on or about “November of 2014,
Facility

A,

dorm

A6,

contracted

norovirus.”

Plaintiff alleges that Defendants not only “failed to give

10

dorm A6 inmates medical care and treatment”, they “knowingly moved

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infected dorm A6 inmates to other non-infected dorms”, including A8,

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compelling non-infected inmates to live with infected inmates and

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allowing infected inmates to share dining spaces and medical clinics,

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among other areas, with non-infected inmates.

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alleges that Defendants failed to provide dorm A8 inmates with “latex

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gloves,

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themselves from exposure to” the norovirus.

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that on or about December 12, 2014, he contracted norovirus and

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“suffered

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immediate unforeseen and sudden onset queazyness, nausea, persistent

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vomiting, stomach cramps and pain, muscle pain, body aches, fever,

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persistent diarrhea, and weight loss, for approximately a week . . .”

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(Compl. 9).

facial

all

masks,

of

its

or

the

symptoms

necessary

including

(Id.).

chemicals
(Id.).

but

not

Plaintiff

to

protect

Plaintiff claims

limited

to

an

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25

Plaintiff alleges that as a “direct and proximate result” of

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Defendants’ acts and omissions, he “suffered injuries in the form of,

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but

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distress”.

not

limited

to,

pain

and

suffering,

(Compl. 9).
4

mental

and

emotional

STANDARD OF REVIEW

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2
3

Congress mandates that district courts initially screen civil

4

complaints filed by prisoners seeking redress from a governmental

5

entity or employee.

6

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

9

defendant who is immune from such relief.

28 U.S.C. § 1915A.

A court may dismiss such a

28 U.S.C. § 1915A(b)(1)–

10

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

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2000) (en banc).

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13

Dismissal for failure to state a claim is appropriate if a

14

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

15

that

is

16

550

U.S.

17

(2009).

“A claim has facial plausibility when the plaintiff pleads

18

factual

content

19

inference that the defendant is liable for the misconduct alleged.”

20

Iqbal, 556 U.S. at 678; see also Hartmann v. Cal. Dep’t of Corr.

21

& Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013).

22

provide “more than labels and conclusions” or a “formulaic recitation

23

of the elements” of his claim.

24

556 U.S. at 678.

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[complaint] need only ‘give the defendant fair notice of what the

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. . . claim is and the grounds upon which it rests.’”

27

Pardus,

28

550 U.S. at 555).

plausible
544,

551

570

U.S.

on

its

(2007);

that

face.”

Bell

Ashcroft

v.

allows

the

court

Atl.

Iqbal,

to

Corp.
556

draw

v.

U.S.

the

Twombly,
662,

678

reasonable

A plaintiff must

Twombly, 550 U.S. at 555; Iqbal,

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

89,

93

(2007)

5

(per

curiam)

Erickson v.

(quoting

Twombly,

In

1

considering

whether

to

dismiss

a

complaint,

a

court

is

2

generally limited to the pleadings and must construe all “factual

3

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

4

light

5

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

6

“to be liberally construed” and held to a less stringent standard

7

than those drafted by a lawyer.

8

Hebbe

9

incorporated the Twombly pleading standard and Twombly did not alter

10

courts’ treatment of pro se filings; accordingly, we continue to

11

construe

12

Iqbal.”).

13

be warranted based on either the lack of a cognizable legal theory or

14

the

15

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

16

2008).

17

claim

18

necessarily defeat the claim.

19

1228–29 (9th Cir. 1984).

most

v.

favorable”

Pliler,

pro

se

to

627

the

F.3d

filings

plaintiff.

Lee

v.

City

of

L.A.,

Moreover, pro se pleadings are

Erickson, 551 U.S. at 94; see also

338,

342

liberally

(9th

when

Cir.

2010)

evaluating

(“Iqbal

them

under

Nevertheless, dismissal for failure to state a claim can

absence

of

factual

support

for

a

cognizable

legal

theory.

A complaint may also be dismissed for failure to state a
if

it

discloses

some

fact

or

complete

defense

that

will

Franklin v. Murphy, 745 F.2d 1221,

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21

DISCUSSION

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Plaintiff’s

Complaint

contains

deficiencies

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dismissal, although leave to amend should be granted.2

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warranting

1915A(b)(1).

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27
28

2

See 28 U.S.C.

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
6

A.

The Complaint Fails To Satisfy Federal Rule of Civil Procedure 8

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5

The Court advises Plaintiff of the following requirements under
the Federal Rules of Civil Procedure regarding the general formatting
of his Complaint.
statement

of

the

The Complaint must contain “a short and plain
claim

showing

that

[plaintiff]

is

entitled

to

6

relief.”

Fed. R. Civ. P. 8(a)(2).

“Each allegation must be simple,

7

concise, and direct.”

Fed. R. Civ. P. 8(d)(1).

Lengthy complaints

8

violate Rule 8 if a defendant would have difficulty responding to the
9

complaint.

Cafasso, U.S. ex rel. v. General Dynamics C4 Systems,

10
11

Inc., 637 F.3d 1047, 1059 (9th Cir. 2011).

12

Plaintiff’s Complaint does not comply with the standards of Rule

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14

8.

The

unnecessarily

15

relevant

16

overly wordy, and redundant.

17

Plaintiff states:

and

irrelevant

long

Complaint,

facts

with

legal

which

mixes

argument,

is

potentially
confusing,

For example, in Count I, paragraph six,

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Defendants Tim Perez, Warden, and LeMaster[],
Associate Warden, were at all times relevant to this
action responsible for supervising, disciplining,
directing, governing, administrating, and providing
necessary training for all correctional officers and
medical staff employed at CIM. Defendants were at
all times the final authorities at CIM and were also

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25
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27
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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

responsible for all the practices and procedures
formulated, promulgated, disseminated, modified and
enforced by correctional and medical staff alike.

1
2
3
4

(Compl. 6).3

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potential duty of Defendants Perez and LeMaster.

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need only describe the relevant facts in simple, direct, and concise

7

terms, as well as how each Defendant personally participated in an

8

alleged

9

constitutional violations and failed to prevent them.

It is unnecessary for Plaintiff to enumerate every

deprivation

of

constitutional

Rather, Plaintiff

rights

or

knew

of

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11
12
13

To

provide

another

guiding

example,

in

Count

I,

paragraph

fifteen, Plaintiff alleges that Defendants “knowingly moved infected
dorm A6 inmates to other non-infected dorms, forced, coerced, and

14

compelled non-infected inmates to live with infected inmates, and
15

effectively

exposed

non-infected

inmates

and

placed

them

at

an

16

unnecessary high risk of being infected”.

(Compl. 8).

In subsequent

17

paragraphs, Plaintiff goes on to describe, in detail, each specific
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19
20

area that Defendants allowed infected inmates to use simultaneously
with

non-infected

inmates.

(Compl.

8-9).

At

times,

these

21

allegations can be consolidated into shorter and simpler statements.

22

The level of detail provided is both unnecessary and confusing.

23

Plaintiff

24
25

averments.

is

further

cautioned

to

avoid

making

redundant

Multiple paragraphs re-state, in different ways, claims

26
27

3

All page references correspond with the pagination provided by
the Court’s electronic docket.

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8

1

Plaintiff previously made.

Again, Plaintiff need only once describe

2

the relevant facts in short and simple terms.

3
4

B.

Supervisory Liability

5
6
7

To demonstrate a civil rights violation against a government
official, a plaintiff must show either direct, personal participation

8

of the official in the harm or some sufficient causal connection
9

between

the

official’s

conduct

and

the

alleged

constitutional

10

violation.

See Starr v. Baca, 652 F.3d 1202, 1205-07 (9th Cir.

11

2011).

To be held liable, a supervising officer has to personally

12
13
14
15

take some action against the plaintiff or “set in motion a series of
acts by others . . . which he knew or reasonably should have known,
would

cause

others

to

inflict

the

constitutional

injury”

on

the

16

plaintiff.

17

1991) (internal quotations omitted).

18

held liable for the unconstitutional conduct of their subordinates

19

under a theory of respondeat superior.

20

U.S. 662, 676 (2009).

21

imposed against a supervisory official in his individual capacity

22

[only]

23

supervision, or control of his subordinates, for his acquiescence in

24

the constitutional deprivations of which the complaint is made, or

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26

for

Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir.

his

own

Government officials may not be

See Ashcroft v. Iqbal, 556

Rather, “[s]upervisory liability [may be]

culpable

action

or

inaction

in

the

training,

for conduct that showed a reckless or callous indifference to the
rights of others.”

Preschooler II v. Clark County Bd. of Trustees,

27

479 F.3d 1175, 1183 (9th Cir. 2007).
28
9

1

“Vague and conclusory allegations of official participation in

2

civil rights violations are not sufficient to withstand a motion to

3

dismiss.” Ivey v. Bd. Of Regents, 673 F.2d 266, 268 (9th Cir. 1982);

4

see also Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th

5

Cir. 1997); Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (per

6

curiam).

7
8

Plaintiff alleges that “[a]ll individual defendants are named
9

based on their personal involvement and/or supervisorial liability
10

for their role in the constitutional deprivations alleged”.

(Compl.

11

7).

Specifically,

Plaintiff

lists

(1)

Louie

Escobell,

Larry

Maldonado,

CEO;

CHSA

(4)

(2)

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13
14
15

Muhammed

A.

Farooq,

CMO;

(3)

II;

Jose

Serrano, CNE; (5) J. Christofferson, SRN II; (6) and DOES 1-5 as
Defendants (Compl. 5), however fails to allege particular facts which

16

demonstrate

that

these

17

alleged

18

constitutional violations and failed to act to prevent them.

deprivation

individuals
of

personally

constitutional

participated

rights

or

in

knew

an
of

19

Plaintiff

20

is

instructed

to

describe

how

each

Defendant

21

specifically and personally participated in an alleged deprivation of

22

constitutional rights, knew of constitutional violations and failed

23

to act to prevent them, or some sufficient causal connection between

24

the official’s conduct and the alleged constitutional violation.

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26

\\
\\

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\\
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10

1

C.

Plaintiff Must Identify The Doe Defendants Before The Court May
Order Service Of Process

2
3

The

4

Complaint

names

twenty

Doe

defendants.

A

plaintiff’s

5

complaint may name a fictitious defendant if the plaintiff does not

6

know the true identity of the defendant prior to the filing of the

7

complaint.

8

1999).

9

the United States Marshal upon any fictitious defendant, a plaintiff

10

must provide the Court identifying information sufficient to permit

11

the United States Marshal to effect service of process.

12

plaintiff should generally be given an opportunity to discover the

13

names of unknown defendants.

14

637, 642-43 (9th Cir. 1980).

See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir.

Nonetheless, before the Court can order service of process by

Thus, a

See Gillespie v. Civiletti, 629 F.2d

15

It is premature to order discovery because Plaintiff’s claims

16
17

are

defective

18

defendants.

19

that

20

identities of any Doe defendants if he pursues this action.

he

may

for

reasons

unrelated

to

the

See Wakefield, 177 F.3d at 1163.
be

required

to

conduct

naming

of

fictitious

Plaintiff is advised

discovery

to

determine

the

21
22

Plaintiff is also advised that he must establish that every

23

Defendant,

including

24

involvement

in

25

defendant’s action or inaction caused the harm suffered.

26

652 F.3d at 1207.

the

every

civil

unknown

rights

defendant,

violations

27
28
11

alleged

had
and

personal
that

the

See Starr,

CONCLUSION

1
2
3
4

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

5
6

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

7

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

8

Order.

9

discussed above and shall be complete in itself without reference to

The First Amended Complaint must cure the pleading defects

10

the original Complaint.

See L.R. 15-2 (“Every amended pleading filed

11

as a matter of right or allowed by order of the Court shall be

12

complete including exhibits.

13

the prior, superseding pleading.”).

14

allege and plead any viable claims in the original Complaint again.

The amended pleading shall not refer to
This means that Plaintiff must

15
16

In any amended complaint, Plaintiff should identify the nature

17

of each separate legal claim and confine his allegations to those

18

operative facts supporting each of his claims.

19

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

20

violated and the supporting facts for that claim only.

21

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

22

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

23

entitled

24

allegations in the First Amended Complaint should be consistent with

25

the authorities discussed above.

26

Complaint may not include new Defendants or claims not reasonably

27

related

28

Plaintiff is strongly encouraged to once again utilize the standard

to

to

relief.”

the

However,

allegations

in

Plaintiff

is

For each separate

Pursuant to

advised

that

the

In addition, the First Amended

the

12

previously

filed

complaints.

1

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

2

of which is attached.

3
4

Plaintiff is explicitly cautioned that failure to timely file a

5

First

Amended

Complaint,

6

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

7

portions

8

prosecute and/or failure to comply with court orders.

9

Civ. P. 41(b).

thereof,

be

or

failure

dismissed

with

to

correct

prejudice

the

for

deficiencies

failure

to

See Fed. R.

Plaintiff is further advised that if he no longer

10

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

11

particular Defendants or claims, he may voluntarily dismiss all or

12

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

13

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

14

Dismissal is attached for Plaintiff’s convenience.

A form Notice of

15
16

IT IS SO ORDERED.

17
18

Dated: April 18, 2017

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20
21

______________/s/_____________
ALKA SAGAR
United States Magistrate Judge

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