Blair v. CDCR et al

Filing 8

ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, for Failure to Comply with Federal Rules of Civil Procedure signed by Magistrate Judge Stanley A. Boone on 11/07/2014. Amended Complaint due by 12/11/2014. (Attachments: # 1 Amended Complaint Form)(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PERRY C. BLAIR,

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Plaintiff,
v.
CDCR, et al.,
Defendants.

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Case No.: 1:14-cv-01156-SAB (PC)
ORDER DISMISSING COMPLAINT, WITH
LEAVE TO AMEND, FOR FAILURE TO
COMPLY WITH FEDERAL RULES OF
CIVIL PROCEDURE
[ECF No. 1]

Plaintiff Perry C. Blair is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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Plaintiff filed the instant complaint on July 24, 2014. For the reasons set forth below, the

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Court finds that Plaintiff’s complaint must be dismissed. Plaintiff shall be given the opportunity to file

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an amended complaint curing the deficiencies described by the Court in this order. The Court will

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provide Plaintiff with the legal standards that appear to apply to the claims.

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I.

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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 or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings

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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now

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higher, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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Plaintiff’s complaint is three hundred and eighteen pages (sixty one of which contain

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handwritten allegations and prayer for relief) in length and is incorporated, without reference, with

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exhibits. Plaintiff raises several different allegations against several different individuals, including

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cruel and unusual punishment, conspiracy, failure to protect, falsification of documents, due process

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violations, deliberate indifference to a serious medical need, and negligence.

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Plaintiff’s complaint must contain “a short and plain statement of the claim showing that

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[Plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Each allegation must be simple, concise, and

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direct.” Federal Rule of Civil Procedure 8(d)(1). A party must state its claims or defenses in

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numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Federal
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Rule of Civil Procedure 10(b). “[E]ach claim founded on a separate transaction or occurrence . . . must

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be stated in a separate count.” Federal Rule of Civil Procedure 10(b).

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Where the factual elements of a cause of action are present, but are scattered throughout the

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complaint and are not organized into a short, plain statement of the claim, dismissal for failure to

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satisfy Rule 8 if proper. See McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996) (explaining

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complaint should set forth who is being sued, for what relief, and on what theory, with enough detail

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to provide notice to defendants).

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The function of the complaint is not to list every single fact relating to Plaintiff’s claims.

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Plaintiff’s three hundred and eighteen page complaint sets forth a multiple of claim (some related and

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some unrelated) against a multitude of Defendants. It is so mired in extraneous facts, various issues

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related and unrelated, and legal arguments that it fails to comply with Rule 8(a). Some of Plaintiff’s

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claim may be cognizable under 1983, but it is not the function of the court to attempt to find them in a

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complaint that is in violation of Rule 8 of the Federal Rules of Civil Procedure. Thus, Plaintiff is

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being given the applicable standards based on his stated claims and leave to file a first amended

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complaint.

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Plaintiff is advised that the submission of evidence, by way of exhibits, is premature at this

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point in the proceedings as Plaintiff is only required to state a prima facie claim for relief via his

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factual allegations. Thus, in amending his complaint, Plaintiff need only state concisely the facts upon

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which he alleges a defendant has violated his constitutional rights. If Plaintiff feels compelled to

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submit exhibits with an amended complaint, he is advised that such exhibits must be attached to the

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amended pleading and must be incorporated by reference. Fed. R. Civ. P. 10(c). With regard to

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exhibits that are properly attached and incorporated, Plaintiff is cautioned that it is the Court’s duty to

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evaluate the factual allegations within a complaint, not to wade through exhibits, to determine whether

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cognizable claims have been stated.

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Further, if Plaintiff attaches exhibits to an amended complaint, each exhibit must be

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specifically referenced. For example, Plaintiff must state “see Exhibit A” or something similar in

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order to direct the Court to the specific exhibit Plaintiff is referencing. Further, if the exhibit consists

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of more than one page, Plaintiff must reference the specific page of the exhibit (i.e. “see Exhibit A,
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page 3”). Finally, Plaintiff is advised that the Court must assume that Plaintiff’s factual allegations are

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true. Therefore, it is generally unnecessary for Plaintiff to submit exhibits in support of the allegations

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in a complaint.

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III.

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DISCUSSION

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A.

Rule 18 and 20 of the Federal Rules of Civil Procedure

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A basic lawsuit is a single claim against a single defendant. Federal Rule of Civil Procedure

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18(a) allows a plaintiff to add multiple claims to the lawsuit when they are against the same defendant.

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Federal Rule of Civil Procedure 20(a)(2) allows a plaintiff to join multiple defendants to a lawsuit

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where the right to relief arises out of the same “transaction, occurrence, or series of transactions” and

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“any question of law or fact common to all defendants will arise in the action.” However, unrelated

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claims that involve different defendants must be brought in separate lawsuits. See George v. Smith,

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507 F.3d 605, 607 (7th Cir. 2007). This rule is not only intended to avoid confusion that arises out of

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bloated lawsuits, but also to ensure that prisoners pay the required filing fees for their lawsuits and

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prevent prisoners from circumventing the three strikes rule under the Prison Litigation Reform Act.

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28 U.S.C. § 1915(g).

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The Court advises Plaintiff that each claim that is raised in his second amended complaint must

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be permitted by either Rule 18 or Rule 20. Plaintiff may state a single claim against a single

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defendant. Plaintiff may then add any additional claims to his action that are against the same

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defendant under Rule 18. Fed. R. Civ. P. 18. Plaintiff may also add any additional claims against

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other defendants if those claims arise from the same transaction, occurrence, or series of transactions

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as his original claim. Fed. R. Civ. P. 20(a)(2). Any attempt to join claims that are not permitted by

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the Federal Rules of Civil Procedure will result in those claims being dismissed as improperly joined.

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B.

Cruel and Unusual Punishment

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The Eighth Amendment’s prohibition against cruel and unusual punishment protects prisoners

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not only from inhumane methods of punishment but also from inhumane conditions of confinement.

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Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825,

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847 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347 (1981)) (quotation marks omitted). While
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conditions of confinement may be, and often are, restrictive and harsh, they must not involve the

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wanton and unnecessary infliction of pain. Morgan, 465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347)

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(quotation marks omitted). Thus, conditions which are devoid of legitimate penological purpose or

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contrary to evolving standards of decency that mark the progress of a maturing society violate the

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Eighth Amendment. Morgan, 465 F.3d at 1045 (quotation marks and citations omitted); Hope v.

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Pelzer, 536 U.S. 730, 737 (2002); Rhodes, 452 U.S. at 346.

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

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clothing, 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), but not every injury that a prisoner sustains while in

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prison represents a constitutional violation, Morgan, 465 F.3d at 1045 (quotation marks omitted). To

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maintain an Eighth Amendment claim, a prisoner must show that prison officials were deliberately

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indifferent to a substantial risk of harm to his health or safety. Farmer, 511 U.S. at 847; Thomas v.

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Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 812-14 (9th Cir.

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2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v. Agnos, 152 F.3d 1124, 1128 (9th

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Cir. 1998).

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C.

Conspiracy

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To state a claim for conspiracy under section 1983, Plaintiff must show the existence of an

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agreement or a meeting of the minds to violate his constitutional rights, and an actual deprivation of

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those constitutional rights. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010); Franklin v. Fox, 312

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F.3d 423, 441 (9th Cir. 2001).

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D.

Failure to Protect

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The Eighth Amendment protects prisoners from inhumane methods of punishment and from

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inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006).

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Prison officials have a duty to take reasonable steps to protect inmates from physical abuse. Farmer v.

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Brennan, 511 U.S. 825, 833 (1994); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The

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failure of prison officials to protect inmates from attacks by other inmates may rise to the level of an

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Eighth Amendment violation where prison officials know of and disregard a substantial risk of serious

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harm to the plaintiff. Farmer, 511 U.S. at 847; Hearns, 413 F.3d at 1040. )). Additionally, an officer
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can only be held liable for failing to intercede if he had a realistic opportunity to intercede and failed

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to do so. Cunningham v. Gates, 229 F.3d 1271, 1289-90 (9th Cir. 2000).

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E.

Due Process

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“Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of

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rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556,

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(1974). With respect to prison disciplinary proceedings, the minimum procedural requirements that

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

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receives written notice and the time of the hearing, so that the prisoner may prepare his defense; (3) a

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written statement by the fact finders of the evidence they rely on and reasons for taking disciplinary

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action; (4) the right of the prisoner to call witnesses in his defense, when permitting him to do so

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would not be unduly hazardous to institutional safety or correctional goals; and (5) legal assistance to

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

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As long 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), abrogated on other grounds by Sandin v. Connor, 515

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U.S. 472 (1995). In addition “[s]ome 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 the

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relevant inquiry is whether “there is any evidence in the record that could support the conclusion

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reached . . . .” Id. at 455-56 (emphasis added).

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F.

Deliberate Indifference to Serious Medical Need

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While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical

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care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to

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an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled

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in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v.

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Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition

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could result in further significant injury or the unnecessary and wanton infliction of pain,” and (2) that

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“the defendant’s response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing

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Jett, 439 F.3d 1091, 1096 (9th Cir. 2006)). Deliberate indifference is shown by “(a) a purposeful act
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or failure to respond to a prisoner’s pain or possible medical need, and (b) harm caused by the

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indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind

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is one of subjective recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d

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at 985 (citation and quotation marks omitted); Wilhelm, 680 F.3d at 1122.

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G.

Negligence

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“Under California law, ‘[t]he elements of negligence are: (1) defendant’s obligation to conform

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to a certain standard of conduct for the protection of others against unreasonable risks (duty); (2)

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failure to conform to that standard (breach of duty); (3) a reasonably close connection between the

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defendant’s conduct and resulting injuries (proximate cause); and (4) actual loss (damages).’” Corales

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v. Bennett, 567 F.3d 554, 572 (9th Cir. 2009) (quoting McGarry v. Sax, 158 Cal.App.4th 983, 994, 70

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Cal.Rptr.3d 519 (2008) (internal quotations omitted)).
“In order to establish negligence under California law, a plaintiff must establish four required

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elements: (1) duty; (2) breach; (3) causation; and (4) damages.” Ileto v. Glock Inc., 349 F.3d 1191,

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1203 (9th Cir. 2003).

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IV.

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CONCLUSION AND ORDER

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For the reasons stated, Plaintiff’s complaint fails to state a claim upon which relief may be

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granted. Plaintiff is granted leave to file an amended complaint within thirty (30) days. Noll v.

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change the nature of this suit by

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adding new, unrelated claims in his amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007) (no “buckshot” complaints).
Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each

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named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights.

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Iqbal, 556 U.S. 662, 678. There is no conceivable reason why Plaintiff should need more than twenty-

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five pages to identify his claims and the specific facts that support those claims. Accordingly, absent

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further order of this Court for good cause showing, Plaintiff’s amended complaint, if he chooses to file

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one, may not exceed twenty-five pages in length.

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Finally, an amended complaint supersedes the original complaint, Forsyth v. Humana, Inc.,

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114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), and must be

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“complete in itself without reference to the prior or superseded pleading,” Local Rule 220. “All

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causes of action alleged in an original complaint which are not alleged in an amended complaint are

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waived.” King, 814 F.2d at 567 (citing to London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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1981)); accord Forsyth, 114 F.3d at 1474.

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Based on the foregoing, it is HEREBY ORDERED that:

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The Clerk’s Office shall send Plaintiff an amended civil rights complaint form;

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2.

Plaintiff’s complaint, filed July 24, 2014, is dismissed for failure to state a claim;

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3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file an
amended complaint;

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Plaintiff’s amended complaint SHALL be limited to 25 pages, excluding exhibits; and

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If Plaintiff fails to file an amended complaint in compliance with this order, this action
will be dismissed for failure to comply with the Federal Rules of Civil Procedure.

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IT IS SO ORDERED.

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Dated:

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November 7, 2014
UNITED STATES MAGISTRATE JUDGE

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