Nettles v. Lopez

Filing 67

ORDER DISMISSING CASE WITH LEAVE TO AMEND, signed by Magistrate Judge Jennifer L. Thurston on 05/05/2017. Amended Complaint due 30-Day Deadline (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAMOUS D. NETTLES,

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Plaintiff,

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Case No. 1:11-cv-01201-AWI-JLT (PC)
ORDER DISMISSING PETITION
WITH LEAVE TO AMEND

v.
(Doc. 1)

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LOPEZ, et al.,
30-DAY DEADLINE

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Defendants.

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Plaintiff filed this action as a petition for writ of habeas corpus under 28 U.S.C. § 2254.

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The Court granted the respondent’s motion to dismiss and Plaintiff appealed. On July 26, 2016,

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the Ninth Circuit Court of Appeals agreed with this Court that this action cannot proceed as a

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petition for writ of habeas corpus because success of the merits would not necessarily impact the

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length of the petitioner’s sentence. (Doc. 53.) However, the Court reversed the judgment and

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remanded the matter to allow it to be re-characterized as an action under 42. U.S.C. § 1983, if

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after advice of the risks and benefits, the petitioner wished to proceed in that manner. (Id.)

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The Court provided the Plaintiff this advice and he chose to have the action re-

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characterized under § 1983. (Docs. 55, 62, 64.) The action is now DISMISSED with leave to

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amend.

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A.

Screening Requirement

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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary

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relief 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)(i)-(iii). If an action is dismissed on one of these three bases, a strike is imposed

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per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed

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as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has

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not alleged imminent danger of serious physical injury does not qualify to proceed in forma

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pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015).

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B.

Plaintiff=s Claims

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Because this action was originally filed under § 2254, the Court is unsure what claims

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Plaintiff desires to attempt to state under § 1983. However, he is provided the pleading

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requirements and the legal standards for the claims that appear most applicable based on the

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factual allegations gleaned from his petition under § 2254. Plaintiff may be able to state

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cognizable claims under § 1983 and is given opportunity to amend his pleading. Nettles v.

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Grounds, 830 F.3d 922, 936 (9th Cir. 2016).

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C.

Pleading Requirements
1.

Federal Rule of Civil Procedure 8(a)

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“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). 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. Pro. 8(a).

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“Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

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the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is
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plausible on its face.’” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual

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allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S.

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Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.

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While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft,

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580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally

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and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze

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v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may

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not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit

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Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266,

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268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal-

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Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and

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“facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.

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If he chooses to file a first amended complaint, Plaintiff should endeavor to make it as

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concise as possible. He should must state which of his constitutional rights he feels were violated

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by each Defendant why he thinks so.

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2.

Linkage Requirement

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To state a claims under 42 U.S.C. ' 1983, there must be an actual connection or link

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between the actions of the defendants and the deprivation alleged to have been suffered by

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Plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423

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U.S. 362 (1976). The Ninth Circuit has held that A[a] person >subjects= another to the deprivation

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of a constitutional right, within the meaning of section 1983, if he does an affirmative act,

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participates in another=s affirmative acts or omits to perform an act which he is legally required to

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do that causes the deprivation of which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743

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(9th Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff must link each

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named defendant with some affirmative act or omission that demonstrates a violation of
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Plaintiff=s federal rights.

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Plaintiff must clearly state which Defendant(s) he feels are responsible for each violation

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of his constitutional rights and their factual bases such that his complaint puts each Defendant on

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notice of Plaintiff=s claims against him or her. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th

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Cir. 2004).
3.

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Exhibits

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Originals, or copies of evidence (i.e., prison or medical records, witness affidavits, inmate

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appeals, etc.) need not be submitted until the course of litigation brings the evidence into question

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(for example, on a motion for summary judgment, at trial, or when requested by the Court). At

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this point, the submission of evidence is premature as Plaintiff is only required to state a prima

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facie claim for relief via his factual allegations. Thus, in amending his Complaint, Plaintiff would

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do well to simply state the facts upon which he alleges a defendant has violated his constitutional

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rights and refrain from submitting exhibits.

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If Plaintiff feels compelled to submit exhibits with an amended complaint, such exhibits

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must be attached to the amended pleading and must be incorporated by reference. Fed. R. Civ.

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Pro. 10(c). For example, Plaintiff must state Asee Exhibit A@ or something similar to direct the

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Court to the specific exhibit Plaintiff’s allegations reference and Plaintiff would do well to state

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what he intends the exhibit to show the reader. Further, if the exhibit consists of more than one

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page, Plaintiff must reference the specific page of the exhibit (i.e. ASee Exhibit A, page 3@).

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Finally, even if exhibits are properly attached and incorporated in a pleading, Plaintiff is

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cautioned that it is the Court=s duty on screening to assume the factual allegations are true and to

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assess merely whether a cognizable claim is stated; it will not review exhibits to verify

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evidentiary support for the claims. Therefore, it is generally unnecessary for Plaintiff to submit

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exhibits in support of the allegations in a complaint.

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D.

Claims for Relief
1.

Due Process

The Due Process Clause protects prisoners from being deprived of liberty without due
process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action
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for deprivation of due process, a plaintiff must first establish the existence of a liberty interest for

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which the protection is sought. AStates may under certain circumstances create liberty interests

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which are protected by the Due Process Clause.@ Sandin v. Conner, 515 U.S. 472, 483-84 (1995).

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Liberty interests created by state law are generally limited to freedom from restraint which

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Aimposes atypical and significant hardship on the inmate in relation to the ordinary incidents of

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prison life.@ Sandin, 515 U.S. at 484.

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APrison disciplinary proceedings are not part of a criminal prosecution, and the full

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panoply of rights due a defendant in such proceedings does not apply.@ Wolff v. McDonnell, 418

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U.S. 539, 556 (1974). With respect to prison disciplinary proceedings, the minimum procedural

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requirements that must be met are: (1) written notice of the charges; (2) at least 24 hours between

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the time the prisoner receives written notice and the time of the hearing, so that the prisoner may

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prepare his defense; (3) a written statement by the fact finders of the evidence they rely on and

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reasons for taking disciplinary action; (4) the right of the prisoner to call witnesses and present

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documentary evidence in his defense, when permitting him to do so would not be unduly

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hazardous to institutional safety or correctional goals; and (5) legal assistance to the prisoner

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where the prisoner is illiterate or the issues presented are legally complex. Id. at 563-71. As long

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as the five minimum Wolff requirements are met, due process has been satisfied. Walker v.

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Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994).

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Prison officials may "limit a prisoner=s right to defend himself [,but] they must have a

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legitimate penological interest.@ Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 1992) (per

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curiam) (concluding that prisoners do not have a right to have an independent drug test performed

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at their own expense). The right to call witnesses may legitimately be limited by Athe penological

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need to provide swift discipline in individual cases . . . [or] by the very real dangers in prison life

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which may result from violence or intimidation directed at either other inmates or staff.@ Ponte v.

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Real, 471 U.S. 491, 495 (1985); see also Serrano v. Francis, 345 F.3d 1071, 1079 (9th Cir.

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2003); Mitchell v. Dupnik, 75 F.3d 517, 525 (9th Cir. 1996); Koenig, 971 F.2d at 423; Zimmerlee

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v. Keeney, 831 F.2d 183, 187-88 (9th Cir. 1987) (per curiam

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Further, Athe requirements of due process are satisfied if some evidence supports the
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decision by the prison disciplinary board . . . .@ Hill, 472 U.S. at 455; see also Touissaint v.

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McCarthy, 926 F.2d 800, 802-03 (9th Cir. 1991); Bostic v. Carlson, 884 F.2d 1267, 1269-70 (9th

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Cir. 1989); Jancsek, III v. Oregon bd. Of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987); Cato v.

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Rushen, 824 F.2d 703, 705 (9th Cir. 1987); see Burnsworth v. Gunderson, 179 F.3d 771, 774-74

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(9th Cir. 1999) (where there is no evidence of guilt may be unnecessary to demonstrate existence

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of liberty interest.) ASome evidence@ must support the decision of the hearing officer.

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Superintendent v. Hill, 472 U.S. 445, 455 (1985). The standard is not particularly stringent and

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the relevant inquiry is whether Athere is any evidence in the record that could support the

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conclusion reached . . . .@ Id. at 455-56 (emphasis added)). However, while the due process

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requirements for a prison disciplinary hearing are in many respects less demanding than those for

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criminal prosecution, they are not so lax as to let stand the decision of a biased hearing officer

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who dishonestly suppresses evidence of innocence. Edwards v. Balisok, 520 U.S. 641, 647

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(1997) cf. Wolff v. McDonnell, 418 U.S. 539, 570-571 (1974). Further, the Asome evidence@

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standard does not apply to original rules violation report where a prisoner alleges the report is

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false and retaliatory. Hines v. Gomez, 108 F.3d 265, 268-69 (9th Cir. 1997).

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2.

Eighth Amendment -- Conditions of Confinement

The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v.

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Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison

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officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing,

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sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.

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2000) (quotation marks and citations omitted). To establish a violation of the Eighth

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Amendment, the prisoner must “show that the officials acted with deliberate indifference. . . .”

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Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v.

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County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002).

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The deliberate indifference standard involves both an objective and a subjective prong.

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First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer at 834.

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Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate
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health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995).
Objectively, extreme deprivations are required to make out a conditions of confinement

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claim and only those deprivations denying the minimal civilized measure of life’s necessities are

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,

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503 U.S. 1, 9 (1992). Although the Constitution “ ‘does not mandate comfortable prisons,’ ”

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Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes, 452 U.S. at 349), “inmates are

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entitled to reasonably adequate sanitation, personal hygiene, and laundry privileges, particularly

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over a lengthy course of time,” Howard, 887 F.2d at 137.

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Some conditions of confinement may establish an Eighth Amendment violation “in

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combination” when each would not do so alone, but only when they have a mutually enforcing

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effect that produces the deprivation of a single, identifiable human need such as food, warmth, or

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exercise -- for example, a low cell temperature at night combined with a failure to issue blankets.

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Wilson, 501 U.S. at 304-05(comparing Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979)

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(outdoor exercise required when prisoners otherwise confined in small cells almost 24 hours per

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day), with Clay v. Miller, 626 F.2d 345, 347 (4th Cir. 1980) (outdoor exercise not required when

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prisoners otherwise had access to dayroom 18 hours per day)). To say that some prison

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conditions may interact in this fashion is far from saying that all prison conditions are a seamless

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web for Eighth Amendment purposes. Id. Amorphous “overall conditions” cannot rise to the

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level of cruel and unusual punishment when no specific deprivation of a single human need

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exists. Id. Further, temporarily unconstitutional conditions of confinement do not necessarily

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rise to the level of constitutional violations. See Anderson, 45 F.3d 1310, ref. Hoptowit, 682 F.2d

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at 1258 (abrogated on other grounds by Sandin, 515 U.S. 472 (in evaluating challenges to

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conditions of confinement, length of time the prisoner must go without basic human needs may

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be considered)). Thus, Plaintiff’s factual allegations will be evaluated to determine whether they

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demonstrate a deprivation of a basic human need individually or in combination.

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Subjectively, if an objective deprivation is shown, a plaintiff must show that prison

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officials acted with a sufficiently culpable state of mind, that of “deliberate indifference.” Wilson,

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501 U.S. at 303; Labatad, 714 F.3d at 1160; Johnson, 217 F.3d at 733. “Deliberate indifference
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is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004). AUnder this

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standard, the prison official must not only >be aware of the facts from which the inference could

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be drawn that a substantial risk of serious harm exists,= but that person >must also draw the

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inference.=@ Id. at 1057 (quoting Farmer, 511 U.S. at 837). A>If a prison official should have been

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aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter

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how severe the risk.=@ Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188

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(9th Cir. 2002)).

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circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to establish

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knowledge. Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995).

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3.

To prove knowledge of the risk, however, the prisoner may rely on

Conspiracy

A claim brought for conspiracy in violation of section 1985(3) requires “four elements: (1)

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a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of

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persons of the equal protection of the laws, or of equal privileges and immunities under the laws;

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and (3) an act in furtherance of this conspiracy; (4) whereby a person is either injured in his

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person or property or deprived of any right or privilege of a citizen of the United States.” Sever v.

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Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (citation omitted). A claim for violation

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of section 1985(3) requires the existence of a conspiracy and an act in furtherance of the

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conspiracy. Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005) (citation omitted). A mere

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allegation of conspiracy is insufficient to state a claim. Id. at 676-77. “A racial, or perhaps

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otherwise class-based, invidiously discriminatory animus is an indispensable element of a section

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1985(3) claim.” Sprewell v. Golden State Warriors, 266 F.3d 979, 989 (9th Cir. 2001)

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(quotations and citation omitted). Restraint must be exercised in extending section 1985(3)

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beyond racial prejudice. Butler v. Elle, 281 F.3d 1014, 1028 (9th Cir. 2002). Bare allegations

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that all defendants conspired to harass and/or retaliate against Plaintiff are conclusory at best and

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not cognizable. See Iqbal, 556 U.S. at 678.

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4.

Retaliation

Prisoners have a First Amendment right to file grievances against prison officials and to
be free from retaliation for doing so. Waitson v. Carter, 668 F.3d 1108, 1114-1115 (9th Cir.
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2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.2009). A retaliation claim has five

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elements. Id. at 1114.

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First, the plaintiff must allege that the retaliated-against conduct is protected. Id. The

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filing of an inmate grievance is protected conduct, Rhodes v. Robinson, 408 F.3d 559, 568 (9th

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Cir. 2005), as are the rights to speech or to petition the government, Rizzo v. Dawson, 778 F.2d

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527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989);

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Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Second, the plaintiff must show the

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defendant took adverse action against the plaintiff. Rhodes, at 567. Third, the plaintiff must

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allege a causal connection between the adverse action and the protected conduct. Waitson, 668

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F.3d at 1114. Fourth, the plaintiff must allege that the “official’s acts would chill or silence a

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person of ordinary firmness from future First Amendment activities.” Robinson, 408 F.3d at 568

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(internal quotation marks and emphasis omitted). “[A] plaintiff who fails to allege a chilling

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effect may still state a claim if he alleges he suffered some other harm,” Brodheim, 584 F.3d at

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1269, that is “more than minimal,” Robinson, 408 F.3d at 568 n.11. Fifth, the plaintiff must

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allege “that the prison authorities’ retaliatory action did not advance legitimate goals of the

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correctional institution. . . .” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985).

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It bears repeating that while Plaintiff need only allege facts sufficient to support a

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plausible claim for relief, the mere possibility of misconduct is not sufficient, Iqbal, 556 U.S. at

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678-79, and the Court is “not required to indulge unwarranted inferences,” Doe I v. Wal-Mart

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Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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Thus, Plaintiff’s mere allegations that he engaged in protected activity, without knowledge

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resulting in animus by a Defendant, is insufficient to show that Plaintiff=s protected activity was

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the motivating factor behind a Defendant’s actions.

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5.

Supervisory Liability

Plaintiff is warned that supervisory personnel are generally not liable under section 1983

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for the actions of their employees under a theory of respondeat superior and, therefore, when a

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named defendant holds a supervisory position, the causal link between him and the claimed

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constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th
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Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941

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(1979). To state a claim for relief under section 1983 based on a theory of supervisory liability,

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Plaintiff must allege some facts that would support a claim that supervisory defendants either:

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personally participated in the alleged deprivation of constitutional rights; knew of the violations

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and failed to act to prevent them; or promulgated or "implemented a policy so deficient that the

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policy 'itself is a repudiation of constitutional rights' and is 'the moving force of the constitutional

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violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted);

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Under section 1983, liability may not be

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imposed on supervisory personnel for the actions of their employees under a theory of respondeat

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superior. Iqbal, 556 U.S. at 677. "In a § 1983 suit or a Bivens action - where masters do not

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answer for the torts of their servants - the term 'supervisory liability' is a misnomer." Id.

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Knowledge and acquiescence of a subordinate's misconduct is insufficient to establish liability;

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each government official is only liable for his or her own misconduct. Id.

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A>[B]are assertions . . . amount[ing] to nothing more than a Aformulaic recitation of the

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elements@ of a constitutional discrimination claim,= for the purposes of ruling on a motion to

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dismiss [and thus also for screening purposes], are not entitled to an assumption of truth.@ Moss,

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572 F.3d at 969 (quoting Iqbal, 556 U.S. at 1951 (quoting Twombly, 550 U.S. at 555)). ASuch

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allegations are not to be discounted because they are >unrealistic or nonsensical,= but rather

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because they do nothing more than state a legal conclusion B even if that conclusion is cast in the

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form of a factual allegation.@ Id. Thus, any allegation that supervisory personnel, such as the

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Warden, are somehow liable solely based on the acts of those under his or her supervision does

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not state a cognizable claim.

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However, "a plaintiff may state a claim against a supervisor for deliberate indifference

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based upon the supervisor's knowledge of and acquiescence in unconstitutional conduct by his or

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her subordinates." Starr v. Baca, 652 F.3d 1202, 1207 (2011). Such knowledge and

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acquiescence may be shown via the inmate appeals process where the supervisor was involved in

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reviewing Plaintiff's applicable inmate appeal and had authority and ability, but failed to take

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corrective action which allowed the violation to continue. However, such involvement in
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processing and/or reviewing an inmate appeal based on one incident is necessarily insufficient. A

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defendant may be held liable as a supervisor under § 1983 “if there exists either (1) his or her

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personal involvement in the constitutional deprivation, or (2) a sufficient causal connection

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between the supervisor's wrongful conduct and the constitutional violation.” Hansen v. Black,

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885 F.2d 642, 646 (9th Cir.1989). “[A] plaintiff must show the supervisor breached a duty to

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plaintiff which was the proximate cause of the injury. The law clearly allows actions against

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supervisors under section 1983 as long as a sufficient causal connection is present and the

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plaintiff was deprived under color of law of a federally secured right.” Redman v. County of San

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Diego, 942 F.2d 1435, 1447 (9th Cir. 1991)(internal quotation marks omitted)(abrogated on other

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grounds by Farmer v. Brennan, 511 U.S. 825 (1994).

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“The requisite causal connection can be established . . . by setting in motion a series of

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acts by others,” id. (alteration in original; internal quotation marks omitted), or by “knowingly

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refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably

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should have known would cause others to inflict a constitutional injury,” Dubner v. City & Cnty.

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of San Francisco, 266 F.3d 959, 968 (9th Cir.2001). “A supervisor can be liable in his individual

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capacity for his own culpable action or inaction in the training, supervision, or control of his

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subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a

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reckless or callous indifference to the rights of others.” Watkins v. City of Oakland, 145 F.3d

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1087, 1093 (9th Cir.1998) (internal alteration and quotation marks omitted).

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Thus, if a plaintiff complains of actions by prison personnel in an inmate appeal that states

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a cognizable claim against the prison personnel involved, which is processed or ruled on by their

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supervisor, and on which the supervisor fails to take actions to rectify or cease from continuing to

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occur, which thereafter reoccurs, Plaintiff may be able to state a cognizable claim by showing that

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the supervisor knowingly refused to terminate those acts by his subordinates.
Plaintiff’s Filing fee

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E.

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As indicated above, Plaintiff initiated this action under 28 U.S.C. § 2254, not 42 U.S.C. §

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1983. (See Doc. 1.) The filing fee for an action under § 2254 is $5.00, which has been collected.

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If Plaintiff files a first amended complaint, to pursue this action under § 1983, his in forma
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pauperis status will continue, but he will be obligated to pay the statutory filing fee of $350.00

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for this action. 28 U.S.C. ' 1915(b)(1). Plaintiff will be obligated to make monthly payments in

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the amount of twenty percent of the preceding month’s income credited to his trust account. The

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California Department of Corrections will be required to send to the Clerk of the Court payments

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from Plaintiff’s account each time the amount in the account exceeds $10.00, until the statutory

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filing fee is paid in full. 28 U.S.C. ' 1915(b)(2).

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If Plaintiff decides not to pursue claims under § 1983 and instead files a voluntary

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dismissal, this action will be closed, no further filing fee will be collected, and no “strike” under

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28 U.S.C. § 1915(g) will be imposed as the merits of Plaintiff’s allegations under § 1983 have not

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been considered.

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II.

CONCLUSION

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This action is dismissed and Plaintiff is granted leave to file a first amended complaint

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within 30 days of the date of service of this order. If Plaintiff no longer desires to pursue this

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action, he may file a notice of voluntary dismissal which will not result in further collection of

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filing fees. However, if Plaintiff files a first amended complaint, an order shall issue to collect

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the filing fee of $350 for this action. If Plaintiff needs an extension of time to comply with this

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order, he shall file a motion seeking an extension of time no later than 30 days from the date of

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service of this order.

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Plaintiff must demonstrate in any first amended complaint how the conditions complained

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of have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227

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(9th Cir. 1980). The first amended complaint must allege in specific terms how each named

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defendant is involved. There can be no liability under section 1983 unless there is some

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affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo

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v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Plaintiff's first amended complaint should be brief, Fed. R. Civ. P. 8(a), and must not

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exceed 25 pages, exclusive of exhibits. Such a short and plain statement must “give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic
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1

Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).

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Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief

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above the speculative level . . . .” Twombly, 550 U.S. 127, 555 (2007) (citations omitted).

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Plaintiff is further advised that an amended complaint supercedes the original, Lacey v.

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Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29,

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2012) (en banc), and must be “complete in itself without reference to the prior or superceded

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pleading,” Local Rule 220.

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The Court provides Plaintiff with opportunity to amend to address the legal standards and
pleading requirements identified by the Court in this order. Noll v. Carlson, 809 F.2d 1446,

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1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by adding new, unrelated

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claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no

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"buckshot" complaints).

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Based on the foregoing, the Court ORDERS:

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1.

Plaintiff’s Petition is dismissed, with leave to amend;

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2.

The Clerk's Office shall send Plaintiff a civil rights complaint form; and

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3.

Within 30 days from the date of service of this order, Plaintiff must either file a

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first amended complaint addressing the standards and requirements identified by

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the Court in this order or a notice of voluntary dismissal.

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If Plaintiff fails to comply with this order, a recommendation will issue to dismiss this action

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because of Plaintiff’s failure to obey a court order.

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IT IS SO ORDERED.
Dated:

May 5, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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