Dews v. Arlitz et al

Filing 12

ORDER Dismissing Case with Leave to Amend, signed by Chief Judge Ralph R. Beistline on 11/12/14. Amended Complaint due by 12/22/2014. (Attachments: # 1 Amended Complaint Form)(Gonzalez, R)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CLARENCE LEON DEWS,
Case No. 1:14-cv-00709-RRB
Plaintiff,
vs.
DISMISSAL ORDER
ASSOCIATE WARDEN T. ARLITZ, et
al.,
Defendants.

Clarence Leon Dews, a state prisoner appearing pro se and in forma pauperis, has
filed a civil rights complaint under 42 U.S.C. 1983 against numerous officials employed by the
California Department of Corrections and Rehabilitation (“CDCR”), the Kern County District
Attorney, California Department of Justice, and Attorney General.
I.

SCREENING REQUIREMENT
This Court is required to screen complaints brought by prisoners seeking relief against

a governmental entity or officer or employee of a governmental entity.1 This Court must
dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that

1

28 U.S.C. § 1915A(a).

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“seeks monetary relief against a defendant who is immune from such relief.”2 Likewise, a
prisoner must exhaust all administrative remedies as may be available,3 irrespective of
whether those administrative remedies provide for monetary relief.4
In determining whether a complaint states a claim, the Court looks to the pleading
standard under Federal Rule of Civil Procedure 8(a). Under Rule 8(a), a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”5
“[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but
it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”6
Failure to state a claim under § 1915A incorporates the familiar standard applied in Federal
Rule of Civil Procedure 12(b)(6), including the rule that complaints filed by pro se prisoners
are to be liberally construed, affording the prisoner the benefit of any doubt, and dismissal
should be granted only where it appears beyond doubt that the plaintiff can plead no facts in
support of his claim that would entitle him or her to relief.7

2

28 U.S.C. § 1915(e)(2)(B); 42 U.S.C. § 1997e(c); see Lopez v. Smith, 203 F.3d
1122, 1126 & n.7 (9th Cir. 2000) (en banc).
3

42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 93–95 (2006) (“proper
exhaustion” under § 1997e(a) is mandatory and requires proper adherence to administrative
procedural rules); Booth v. Churner, 532 U.S. 731, 741 (2001) (exhaustion of administrative
remedies must be completed before filing suit).
4

See Booth, 532 U.S. at 734.

5

Fed. R. Civ. P. 8(a)(2).

6

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 554, 555 (2007)).
7

Wilhelm v. Rotham, 680 F.3d 1113, 1121 (9th Cir. 2012).

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This requires the presentation of factual allegations sufficient to state a plausible claim
for relief.8 “[A] complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s
liability . . . ‘stops short of the line between possibility and plausibility of entitlement to relief.’”9
Further, although a court must accept as true all factual allegations contained in a complaint,
a court need not accept a plaintiff’s legal conclusions as true.10 “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”11
Prisoner pro se pleadings are given the benefit of liberal construction.12 While this
Court must liberally construe papers filed by pro se parties, pro se parties must none-the-less
follow the applicable rules of practice and procedure.13 The Complaint filed in this case in its
present form does not meet those requirements.
II.

ANALYSIS
Dews’ Complaint consists of four (4) pages plus 230 pages of attachments. The

Complaint, which reads in narrative form, appears to be more like a brief in that it consists
almost entirely of legal argument, not facts. As a consequence neither this Court nor any
8

Iqbal, 556 U.S. at 678–69; see Moss v. U.S. Secret Service, 572 F.3d 962, 969
(9th Cir. 2009) (quoting and applying Iqbal and Twombly).
9

Iqbal 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

10

Id.

11

Id. (quoting Twombly, 550 U.S. at 555).

12

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Porter v. Ollison, 620
F.3d 952, 958 (9th Cir. 2010).
13

King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the
same rules of procedure that govern other litigants.”) (overruled in part on other grounds in
Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (en banc)).
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named Defendant is able to determine what act(s) of which Defendant(s) violated which of
Dews’ civil rights. Dews has also attached to the Complaint numerous extraneous documents,
e.g., California Form POS-010 (Proof of Service of Summons);14 California Form SC-107
(Proof of Service of Small Claims, etc.);15 and Memorandum re: Writ of Mandate and
Prohibition.16 Attachments to the complaint must be limited to those documents relevant to the
causes of action properly pleaded. That is, those documents that evidence the acts or actions
of the Defendants and any administrative proceedings concerning Dews’ grievances that form
the basis for his complaint.
Furthermore, it appears that Dews may not have properly exhausted his available
administrative remedies with respect to his complaint, at least in part. Exhaustion of
administrative remedies prior to bringing suit is required irrespective of the relief sought by the
prisoner and regardless of the relief provided by the process.17 Although not jurisdictional,
exhaustion is nonetheless mandatory, and there is no discretion to excuse it.18 “Proper
exhaustion” means “complet[ing] the administrative review process in accordance with the
applicable rules.”19 Dews is reminded that, although an unexhausted claim may survive

14

Docket 1, pp. 5–7.

15

Docket 1, pp. 8–22.

16

Docket 1, p. 23

17

42 U.S.C. § 1997e(a) (mandating that “[n]o action shall be brought . . . until [the
prisoner’s] administrative remedies . . . are exhausted.”); Booth v. Churner, 532 U.S. 731, 742
(2001).
18

Porter v. Nussle, 534 U.S. 516, 524 (2002).

19

Jones v. Bock, 549 U.S. 199, 218 (2007).

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screening, unexhausted claims are subject to dismissal on summary judgment or, in some
cases on a motion under Federal Rule of Civil Procedure 12(b).20
Although it may be questionable whether Dews can plead a plausible cause of action
against at least some of the named Defendants, the Court is not inclined to deny Dews leave
to amend. In preparing his amended Complaint Dews must adhere to the following
requirements of notice pleading.
1.

A complaint must contain a short, plain statement of the facts, i.e., who, what,

when, and the resulting injury.
2.

Mere conclusory statements without factual support will be disregarded.

3.

Do not include citations to legal authority.

4.

Do not write outside the margins. Pleadings and other documents filed with the

Court should comply as nearly as practicable with the provisions of Local Rule 130.
(b) Conventionally-Filed Documents and Courtesy Copies. All documents
presented for conventional filing or lodging and the chambers courtesy copies
shall be on white, unglazed opaque paper of good quality with numbered lines
in the left margin, 8-1/2" x 11" in size, and shall be flat, unfolded (except where
necessary for presentation of exhibits), firmly bound at the top left corner, prepunched with two (2) holes (approximately 1/4" diameter) centered 2-3/4" apart,
1/2" to 5/8" from the top edge of the document, and shall comply with all other
applicable provisions of these Rules. Matters contained thereon shall be
presented by typewriting, printing, photographic or offset reproduction, or other
clearly legible process, without erasures or interlining that materially defaces the
document, and shall appear on one side of each sheet only.
(c) Spacing. Documents shall be double-spaced except for the identification
of counsel, title of the action, category headings, footnotes, quotations, exhibits
and descriptions of real property. Quotations of more than fifty (50) words shall
be indented.
20

See Albino v. Baca, 747 F.3d 1162, 1166, 1168–71 (9th Cir. 2014) (en banc).

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(d) Numbering. Each page shall be numbered consecutively at the bottom and
shall provide a brief description of the document on the same line.
5.

Attach documents that relate to the internal processing by CDCR of any

grievance, disciplinary action, complaint, or other request made by the Plaintiff that refers to
or concerns the claims raised in the complaint.
6.

Do not attach copies of prior complaints filed in this or any other court.

7.

Do not attach copies of correspondence to agencies or persons other than as

provided in the immediately preceding paragraph, e.g., correspondence to state or federal
officials, Congressional members, or the Prison Law Office.
8.

Do not attach forms used by the California Court System.

9.

Do not attach summonses, discovery requests, or any other similar document

directed to or that compels one or more of the named Defendants to respond. If any such
documents are required they will be issued in due course as required by, and in accordance
with, the applicable rules of practice and procedure.
III.

ORDER
For the reasons set forth above, the Complaint is hereby DISMISSED. Plaintiff is

granted through and including December 22, 2014, within which to file an Amended
Complaint consistent with the requirements set forth above.

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Plaintiff Clarence Leon Dews is warned that pleadings and documents that do
not comply with the applicable rules of practice of procedure may be summarily
stricken.
IT IS SO ORDERED this 12th day of November, 2014.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

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