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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 CESAR URIBE, 11 Plaintiff, 12 13 v. T. PEREZ, et al., 14 Defendants. 15 16 ) No. CV 5:17-00558 CJC (AS) ) ) ORDER DISMISSING COMPLAINT WITH ) ) LEAVE TO AMEND ) ) ) ) ) ) ) ) 17 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 28 1 1 Perez, Warden; (7) B. LeMaster[], Associate Warden; (8) Captain R. 2 Franco; (9) Lieutenant C.T. Stansbury; (10) Lieutenant D. Williams; 3 and (11) DOES 1-20. 4 Plaintiff states that DOES 1-5 were, during the relevant time, 5 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. 12 6). 13 with DOES 1-5, for ensuring that all CIM medical and custodial staff, 14 including 15 professional, and applicable laws. 16 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.). 17 18 Defendants J. Serrano, L. Maldonado, L. Escobell, B. LeMaster, 19 M. Farooq, C. Stansbury, J. Christofferson, D. Williams and T. Perez 20 (“Defendants”) filed a notice of removal on March 23, 2017, pursuant 21 to 28 U.S.C. § 1441(a). (Docket Entry No. 2). 22 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 28 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). 9 Plaintiff requests declaratory relief against Defendants Perez, 10 11 LeMaster[], Escobell, 12 Specifically, Plaintiff seeks, in part, a judgment declaring that 13 Defendants’ 14 rights. 15 injunctive relief prohibiting defendants from continuing to engage in 16 the 17 general 18 damages as allowed by law, “including statutory and treble damages 19 under California Civil Code §§ 52 and 52.1”; (5) attorneys’ fees and 20 costs; (6) the costs of suit; and (7) such other and further relief 21 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). 22 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 26 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). 28 3 PLAINTIFF’S ALLEGATIONS 1 2 Plaintiff 3 alleges that, while he was an inmate at CIM, 4 Defendants’ actions and, where applicable, inactions caused him to 5 contract the norovirus. 6 is a “High Risk Medical” (“HRM”) facility at which he was housed in 7 dorm A8. 8 HRM 9 (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 11 infected dorm A6 inmates to other non-infected dorms”, including A8, 12 compelling non-infected inmates to live with infected inmates and 13 allowing infected inmates to share dining spaces and medical clinics, 14 among other areas, with non-infected inmates. 15 alleges that Defendants failed to provide dorm A8 inmates with “latex 16 gloves, 17 themselves from exposure to” the norovirus. 18 that on or about December 12, 2014, he contracted norovirus and 19 “suffered 20 immediate unforeseen and sudden onset queazyness, nausea, persistent 21 vomiting, stomach cramps and pain, muscle pain, body aches, fever, 22 persistent diarrhea, and weight loss, for approximately a week . . .” 23 (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 24 25 Plaintiff alleges that as a “direct and proximate result” of 26 Defendants’ acts and omissions, he “suffered injuries in the form of, 27 but 28 distress”. not limited to, pain and suffering, (Compl. 9). 4 mental and emotional STANDARD OF REVIEW 1 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 7 complaint: (1) is frivolous or malicious; (2) fails to state a claim 8 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. 11 2000) (en banc). 12 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. 25 [complaint] need only ‘give the defendant fair notice of what the 26 . . . 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, 20 21 DISCUSSION 22 23 Plaintiff’s Complaint contains deficiencies 24 dismissal, although leave to amend should be granted.2 25 warranting 1915A(b)(1). 26 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 1 2 3 4 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 13 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, 18 19 20 21 22 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 23 24 25 26 27 28 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 5 potential duty of Defendants Perez and LeMaster. 6 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 10 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 18 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. 28 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 25 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) 12 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. 25 26 \\ \\ 27 \\ 28 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 19 20 21 ______________/s/_____________ ALKA SAGAR United States Magistrate Judge 22 23 24 25 26 27 28 13

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