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