Polk v. Pittman et al

Filing 83

SCREENING ORDER DISMISSING 73 Third Amended Complaint, WITH LEAVE TO AMEND; Thirty Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 12/19/2014. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SUSAN MAE POLK, 12 Plaintiff, 13 v. 14 PITTMAN, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) Case No.: 1:11-cv-00728-AWI-BAM PC SCREENING ORDER DISMISSING THIRD AMENDED COMPLAINT WITH LEAVE TO AMEND THIRTY-DAY DEADLINE 17 18 I. 19 Plaintiff Susan Mae Polk (“Plaintiff”), a state prisoner proceeding pro se and in forma 20 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 6, 2011. On October 22, 21 2012, the Court issued an order regarding Plaintiff’s second amended complaint. The order dismissed 22 certain claims and defendants as improperly joined and directed Plaintiff either to file an amended 23 complaint or notify the Court that she was willing to proceed only against Defendants Keith, Logan, 24 Gerber, and Mason for failure to protect in violation of the Eighth Amendment. (ECF No. 47.) 25 Plaintiff’s third amended complaint, filed on May 14, 2013, is currently before the Court for 26 screening. (ECF No. 73.) 27 28 Screening Requirement The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1 1 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or 2 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief 3 from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 4 1915(e)(2)(B)(ii). 5 A complaint must contain “a short and plain statement of the claim showing that the pleader is 6 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 7 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 8 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (citing Bell 9 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff’s 10 allegations are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. 11 Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation 12 omitted). 13 To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient 14 factual detail to allow the Court to reasonably infer that each named defendant is liable for the 15 misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. 16 United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant 17 acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the 18 plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 19 F.3d at 969. 20 II. Allegations of Third Amended Complaint 21 Plaintiff currently is incarcerated at the California Institution for Women. Plaintiff’s third 22 amended complaint exceeds thirty pages, alleges claims against more than thirty named defendants 23 and twenty doe defendants, and contains allegations regarding events spanning from her arrival at the 24 Valley State Prison for Women in February 2007 through January 2012. Plaintiff alleges conspiracy, 25 denial of Equal Protection in violation of the Fourteenth Amendment, deliberate indifference to safety 26 in violation of the Eighth Amendment, and denial of access to the Courts and retaliation under the 27 First Amendment. Plaintiff requests declaratory and injunctive relief, along with compensatory and 28 punitive damages. 2 1 III. Deficiencies of Third Amended Complaint 2 Plaintiff’s third amended complaint fails to comply with Federal Rules of Civil Procedure 8 3 and 18. Plaintiff was previously warned of the deficiencies in her complaint, with particular emphasis 4 on the requirement that her complaint must comply with the applicable joinder rules. Despite the 5 warning and the opportunity to pursue certain cognizable claims, Plaintiff opted to file a deficient third 6 amended complaint. At this juncture, the Court will not expend its already scarce judicial resources 7 parsing through Plaintiff’s third amended complaint to determine which causes of action should 8 proceed against which defendants. In an abundance of caution, Plaintiff will be given a final 9 opportunity to amend her complaint. To assist Plaintiff, the Court provides the following pleading and 10 legal standards that appear applicable to her claims. Plaintiff should carefully review the standards and 11 amend only those claims that she believes, in good faith, are cognizable. A. Pleading Standards 12 1. Federal Rule of Civil Procedure 8 13 14 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 15 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed 16 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 17 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). 18 Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is 19 plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual 20 allegations are accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556– 21 557. Plaintiff’s complaint does not include a short and plain statement of her claims. Instead, 22 23 Plaintiff’s complaint exceeds thirty pages and details various events taking place between 2007 and 24 2012 and involves a multitude of defendants. If Plaintiff elects to amend her complaint, she must set 25 forth a short and plain statement of the claims against each defendant, rather than a narrative of her 26 incarceration at Valley State Prison for Women. As discussed more fully below, Plaintiff’s claims 27 against the individual defendants must comply with the rules for joinder of defendants. 28 /// 3 2. 1 Federal Rule of Civil Procedure 18 Plaintiff is raising numerous claims against different defendants based on different events 2 3 occurring at different times. Plaintiff may not bring unrelated claims against unrelated parties in a 4 single action. Fed. R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); 5 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff may bring a claim against multiple 6 defendants so long as (1) the claim arises out of the same transaction or occurrence, or series of 7 transactions and occurrences, and (2) there are commons questions of law or fact. Fed. R. Civ. P. 8 20(a)(2); Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance 9 Co. of North America, 623 F.2d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly 10 joined under Rule 20(a) will the Court review the other claims to determine if they may be joined 11 under Rule 18(a), which permits the joinder of multiple claims against the same party. As noted, Plaintiff’s complaint fails to comply with the rules regarding joinder of claims. For 12 13 example, Plaintiff appears to be pursuing claims against certain defendants for failure to protect her 14 from harm while simultaneously pursuing claims against certain defendants for retaliation related to a 15 purported mental health assessment and the Mental Health Services Delivery System. Plaintiff may 16 not pursue unrelated claims against unrelated defendants in this action. If Plaintiff elects to amend her 17 complaint, Plaintiff shall choose which claims she wishes to pursue in this action. If Plaintiff does not 18 do so and her amended complaint again sets forth unrelated claims which violate joinder rules, the 19 Court may dismiss this action for failure to comply with court orders. 2. Official Capacity and Eleventh Amendment 20 Plaintiff names defendants in their individual and official capacities. However, the Eleventh 21 22 Amendment prohibits suits for monetary damages against a State, its agencies, and state officials 23 acting in their official capacities. Aholelei v. Dep’t of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 24 2007). Plaintiff may not bring claims for monetary damages against defendants in their official 25 capacities. 26 /// 27 /// 28 /// 4 1 B. Legal Standards 2 1. Conspiracy 3 A conspiracy claim brought under section 1983 requires proof of “‘an agreement or meeting of 4 the minds to violate constitutional rights,’” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir.2001) (quoting 5 United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540–41 (9th Cir.1989) (citation 6 omitted)), and an actual deprivation of constitutional right, Hart v. Parks, 450 F.3d 1059, 1071 (9th 7 Cir.2006) (quoting Woodrum v. Woodward County, Oklahoma, 866 F.2d 1121, 1126 (9th Cir.1989)). 8 “‘To be liable, each participant in the conspiracy need not know the exact details of the plan, but each 9 participant must at least share the common objective of the conspiracy.’” Franklin, 312 F.3d at 441 10 (quoting United Steel Workers, 865 F.2d at 1541). Plaintiff has failed to allege any plausible facts supporting the existence of a conspiracy 11 12 between defendants. Plaintiff’s conclusory allegations are not sufficient. 2. Fourteenth Amendment – Equal Protection 13 14 The Equal Protection Clause requires that all persons who are similarly situated should be 15 treated alike. Lee v. City of Los Angeles, 250 F.3d 668, 686 (2001); City of Cleburne v. Cleburne 16 Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). To state an Equal 17 Protection claim, Plaintiff must show that the defendants acted with an intent or purpose to 18 discriminate against her based on membership in a protected class, Lee, 250 F.3d at 686; Barren v. 19 Harrington, 152 F.3d 1193, 1194 (1998), or that similarly situated individuals were intentionally 20 treated differently without a rational relationship to a legitimate state purpose, Thornton v. City of St. 21 Helens, 425 F.3d 1158, 1167 (2005); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 22 1073, 145 L.Ed.2d 1060 (2000). 23 Insofar as Plaintiff complains of verbal abuse and racially charged language, she does not state 24 a cognizable claim. The Ninth Circuit generally holds that mere verbal harassment or abuse, including 25 the use of racial epithets, does not violate the Constitution and, thus, does not give rise to a claim for 26 relief under 42 U.S.C. § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir.1987). 27 /// 28 /// 5 1 2 3. Eighth Amendment – Deliberate Indifference to Safety Prison officials are required “to take reasonable steps to protect inmates from physical abuse.” 3 Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982) (abrogated on other grounds by Sandin v. 4 O’Connor, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)). “[A] prison official can violate a 5 prisoner’s Eight Amendment rights by failing to intervene.” Robins v. Meecham, 60 F.3d 1436, 1442 6 (9th Cir. 1995). 7 To prove a violation of the Eighth Amendment, Plaintiff must “objectively show that [s]he was 8 deprived of something ‘sufficiently serious,’ and make a subjective showing that the deprivation 9 occurred with deliberate indifference to the inmate’s health or safety.” Thomas v. Ponder, 611 F.3d 10 1144, 1150 (9th Cir. 2010) (citations omitted). Deliberate indifference requires a showing that “prison 11 officials were aware of a ‘substantial risk of serious harm’ to an inmate’s health or safety” and that 12 there was “no reasonable justification for the deprivation, in spite of that risk.” Id. (quoting Farmer v. 13 Brennan, 511 U.S. 825, 837, 844, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). 14 15 4. First Amendment – Access to Courts Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 518 16 U.S. 343, 346, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The right of access is merely the right to bring 17 to court a grievance the inmate wishes to present, and is limited to direct criminal appeals, habeas 18 petitions, and civil rights actions. Id. at 354. Claims for denial of access to the courts may arise from 19 the frustration or hindrance of “a litigating opportunity yet to be gained” (forward-looking access 20 claim) or from the loss of a meritorious suit that cannot now be tried (backward-looking claim). 21 Christopher v. Harbury, 536 U.S. 403, 412–15, 122 S.Ct. 2179, 2185–87, 153 L.Ed.2d 413 (2002). A 22 prisoner alleging a violation of his right of access to the courts must demonstrate that he has suffered 23 “actual injury.” Lewis, 518 U.S. at 349–50. The actual injury requirement mandates that an inmate 24 “demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded.” Id. at 353. 25 The Supreme Court rejected the notion that the state must enable a prisoner to “litigate effectively 26 once in court.” Id. at 354 (quoting and disclaiming language contained in Bounds v. Smith, 430 U.S. 27 817, 825–26, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)); see also Cornett v. Donovan, 51 F.3d 894, 898– 28 6 1 900 (9th Cir.1995) (determining that prisoners’ right of access to the courts is limited to the pleading 2 stage of a civil rights action or petition for writ of habeas corpus). 5. First Amendment - Retaliation 3 4 Allegations of retaliation against a prisoner’s First Amendment rights to speech and to petition 5 the government may support a civil rights claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985); 6 see also Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir.1995). “Within the prison context, a viable claim 7 of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took 8 some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that 9 such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 10 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th 11 Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 12 F.3d 1262, 1269 (9th Cir. 2009). In order to state a claim, a plaintiff must allege specific facts demonstrating that a defendant 13 14 took an adverse act because of plaintiff’s First Amendment activity. The plaintiff’s protected conduct 15 must have been “the ‘substantial’ or ‘motivating’ factor behind the defendant's conduct.” Brodheim, 16 584 F.3d at 1271, quoting Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). The 17 adverse action must not have reasonably advanced a legitimate correctional goal. 6. Declaratory Relief 18 Plaintiff seeks a declaration that her rights were violated. “A declaratory judgment, like other 19 20 forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the 21 public interest.” Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431, 68 S.Ct. 641, 92 22 L.Ed. 784 (1948). “Declaratory relief should be denied when it will neither serve a useful purpose in 23 clarifying and settling the legal relations in issue nor terminate the proceedings and afford relief from 24 the uncertainty and controversy faced by the parties.” United States v. Washington, 759 F.2d 1353, 25 1357 (9th Cir. 1985). In the event that this action reaches trial and the jury returns a verdict in favor of 26 Plaintiff, the verdict will be a finding that Plaintiff’s constitutional rights were violated. Accordingly, 27 a declaration that a defendant violated Plaintiff’s rights is unnecessary. 28 /// 7 7. Injunctive Relief 1 2 To the extent Plaintiff seeks injunctive relief regarding her conditions of confinement at Valley 3 State Prison for Women, this request is moot. Plaintiff has been transferred to the California 4 Institution for Women. A request for injunctive relief becomes moot if a prisoner is transferred. 5 Andrews v. Cervantes, 493 F.3d 1047, 1053 n. 5 (9th Cir. 2007) (citing Johnson v. Moore, 948 F.2d 6 517, 510 (9th Cir.1991) (per curiam). There is no indication that Plaintiff expects to be transferred 7 back to Valley State Prison for Women. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1996). 8 IV. Conclusion and Order 9 Plaintiff’s complaint fails to comply with Federal Rules of Civil Procedure 8 and 18. 10 However, the Court will provide Plaintiff with a final opportunity to amend her complaint. Lopez v. 11 Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff may not change the nature of this suit by adding 12 new, unrelated claims in her amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) 13 (no “buckshot” complaints). 14 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what the 15 named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at 16 678-79, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must be 17 [sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555 18 (citations omitted). 19 As Plaintiff must comply with Rules 8, 18 and 20, twenty-five pages shall be more than 20 sufficient for Plaintiff to identify her claims and set forth specific facts in support of those claims. 21 Accordingly, Plaintiff’s fourth amended complaint may not exceed twenty-five pages in length, and it 22 will be stricken from the record if it violates this page limitation. 23 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 24 Lacey v. Maricopa County, 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Therefore, Plaintiff’s fourth 25 amended complaint must be “complete in itself without reference to the prior or superseded pleading.” 26 Local Rule 220. 27 Based on the foregoing, it is HEREBY ORDERED that: 28 1. The Clerk’s Office shall send Plaintiff a complaint form; 8 1 2 3 4 2. Plaintiff’s third amended complaint, filed May 14, 2013, is dismissed for violating Federal Rules of Civil Procedure 8, 18, and 20; 3. Within thirty (30) days from the date of service of this order, Plaintiff shall file an amended complaint; 5 4. Plaintiff’s fourth amended complaint shall not exceed twenty five pages; and 6 5. If Plaintiff fails to file an amended complaint in compliance with this order, this action 7 may be dismissed for failure to comply with court orders. 8 9 10 11 IT IS SO ORDERED. Dated: /s/ Barbara December 19, 2014 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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