Lopez v. Allison et al

Filing 12

ORDER DISMISSING 1 Complaint WITH LEAVE TO AMEND; Amended Complaint due within Thirty Days signed by Magistrate Judge Jennifer L. Thurston on 5/30/2014. (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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ADAM R. LOPEZ,
Plaintiff,

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ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

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v.

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ALLISON, et al.,

(Doc. 1)
Defendants.

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Case No. 1:13-cv-02010-AWI-JLT (PC)

I.

Background

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Plaintiff, Adam Lopez, is a prisoner in the custody of the California Department of

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Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint in this action

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on December 9, 2013. (Doc. 1.)

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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).

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///
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B.

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It is extremely difficult to ascertain/decipher the allegations in Plaintiff's Complaint. It

Summary of Plaintiff=s Complaint

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appears as though Plaintiff has copied a complaint that has been copied several times over so as to

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make it exceedingly difficult, if not impossible in some places, to read. The Court is able to

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discern that Plaintiff complains of acts that occurred while he was an inmate at the California

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Substance Abuse Treatment Facility and State Prison (ASATF@) in Corcoran, California and that

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he claims that his rights under the Eighth Amendment were violated when he was deprived of

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outdoor/out-of-cell exercise and sunshine for eighteen months during a lockdown/modified

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program. (Doc. 1, p. 5.) The twenty-five pages beyond page 5, which presumably contain the

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Plaintiff's factual allegations of the events that he feels amounted to a violation of his rights under

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the Eight Amendment are indecipherable.

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Thus, it is unknown whether Plaintiff has, or is able to state a cognizable claim against

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any of the named Defendants for violations to his rights under the Eighth Amendment. Plaintiff

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may be able to state a cognizable claim and/or to amend to correct the deficiencies in his pleading

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so as to state a cognizable claim. Thus, he is being given the applicable standards for pleadings

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and exercise claims under the Eight Amendment and leave to file a first amended complaint.

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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. However, "the liberal pleading

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standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319,

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330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential

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elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d

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1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
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"Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

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Detailed factual allegations are not required, but A[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 Asufficient 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. While

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Aplaintiffs [now] face a higher burden of pleadings facts . . ,@ Al-Kidd v. Ashcroft, 580 F.3d 949,

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977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally and are afforded

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

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not required to indulge unwarranted inferences. Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677,

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681 (9th Cir. 2009) (internal quotation marks and citation omitted). The “sheer possibility that a

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defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a

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defendant’s liability” fall short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129

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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 and under twenty-five pages in length. He need state only which of his

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constitutional rights he feels were violated by each Defendant and what occurred to make him

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think so.

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2. Linkage Requirement

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The Civil Rights Act under which this action was filed provides:

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Every person who, under color of [state law] . . . subjects, or causes to
be subjected, any citizen of the United States . . . to the deprivation of
any rights, privileges, or immunities secured by the Constitution . . .
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
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42 U.S.C. ' 1983. The statute plainly requires that there 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.
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 basis as his complaint must put 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).

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3. Federal Rule of Civil Procedure 18(a)

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Fed.R.Civ.P. 18(a) states that "[a] party asserting a claim to relief as an original claim,

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counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate

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claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party."

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"Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not

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be joined with unrelated Claim B against Defendant 2. Unrelated claims against different

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defendants belong in different suits, not only to prevent the sort of morass [a multiple claim,

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multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees-

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for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any

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prisoner may file without prepayment of the required fees." George v. Smith, 507 F.3d 605, 607

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(7th Cir. 2007) citing 28 U.S.C. § 1915(g).

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The fact that claims are premised on the same type of constitutional violation(s) (i.e.

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retaliation) against multiple defendants does not make them factually related. Claims are related

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where they are based on the same precipitating event, or a series of related events caused by the
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same precipitating event. Plaintiff is advised that if he chooses to file a first amended complaint,

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and fails to comply with Rule 18(a), all unrelated claims will be stricken.

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4. Legibility
Plaintiff is incarcerated and is representing himself in this action. Under those

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circumstances, the Court is lenient in overlooking technical and other errors. However, the

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repeatedly copied complaint that Plaintiff submitted is virtually illegible. Plaintiff is required to

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submit filings that are Aclearly legible.@ Local Rule 130(b). The failure to do so will result in an

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order striking the first amended complaint from the record.

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D.

Claims for Relief
1. Eighth Amendment B Exercise

The Eighth Amendment protects prisoners from inhumane methods of punishment and
from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.
2006). Extreme deprivations are required to make out a conditions of confinement claim, and
only those deprivations denying the minimal civilized measure of life=s necessities are sufficiently
grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9
(1992) (citations and quotations omitted). In order to state a claim for violation of the Eighth
Amendment, Plaintiff must allege facts sufficient to support a claim that prison officials knew of

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and disregarded a substantial risk of serious harm to him. E.g., Farmer v. Brennan, 511 U.S. 825,

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847 (1994); Thomas v. Ponder, 611 F.3d 1144, 1151-52 (9th Cir. 2010); Richardson v. Runnels,

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594 F.3d 666, 672 (9th Cir. 2010). Inmates have a constitutional right to exercise and the denial

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of out-of-cell exercise for an extended period of time is sufficiently serious to state a claim under

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the Eighth Amendment. Thomas, 611 F.3d at 1151-52. However, Aa prisoner=s right to outdoor

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exercise is neither absolute nor indefeasible in the light of prison violence.@ Norwood v. Vance,

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591 F.3d 1062, 1068-69 (9th Cir. 2010).

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2. Supervisory Liability

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Supervisory personnel are generally not liable under section 1983 for the actions of their
employees under a theory of respondeat superior and, therefore, when a named defendant holds a

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supervisory position, the causal link between him and the claimed constitutional violation must be

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specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld,

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589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). To state a claim for relief

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under section 1983 based on a theory of supervisory liability, Plaintiff must allege some facts that

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would support a claim that supervisory defendants either: personally participated in the alleged

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deprivation of constitutional rights; knew of the violations and failed to act to prevent them; or

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promulgated or "implemented a policy so deficient that the policy 'itself is a repudiation of

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constitutional rights' and is 'the moving force of the constitutional violation.'" Hansen v. Black,

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885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045

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(9th Cir. 1989). Under section 1983, liability may not be imposed on supervisory personnel for

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the actions of their employees under a theory of respondeat superior. Iqbal, 556 U.S. at 677. "In

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a § 1983 suit or a Bivens action - where masters do not answer for the torts of their servants - the

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term 'supervisory liability' is a misnomer." Id. Knowledge and acquiescence of a subordinate's

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misconduct is insufficient to establish liability; each government official is only liable for his or

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her own misconduct. Id.
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 allegations that supervisory personnel such as a Warden or the CDCR Director

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violated Plaintiff's rights and are somehow liable because of the acts of those under his or her
supervision does not state a cognizable claim against.
II.

CONCLUSION
For the reasons set forth above, Plaintiff's Complaint is dismissed, with leave to file a first

amended complaint within thirty days. If Plaintiff needs an extension of time to comply with this
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order, Plaintiff shall file a motion seeking an extension of time no later than thirty days from the

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date of 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 Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d

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227 (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). Such a short and

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plain statement must "give the defendant fair notice of what the . . . claim is and the grounds upon

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which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v.

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Gibson, 355 U.S. 41, 47 (1957). 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. 127, 555

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(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 cure the deficiencies identified
by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff
may not change the nature of this suit by adding new, unrelated claims in his first amended
complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints).
Based on the foregoing, the Court ORDERS:
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Plaintiff's Complaint is dismissed, with leave to amend;

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

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

first amended complaint curing the deficiencies identified by the Court in this
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order; and

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If Plaintiff fails to comply with this order, this action will be dismissed for failure
to obey a court order and for failure to state a claim.

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IT IS SO ORDERED.
Dated:

May 30, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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