Reid v. United States of America et al

Filing 13

ORDER DISMISSING 1 Complaint WITH LEAVE TO AMEND; Amended Complaint Due Within Thirty (30) Days signed by Magistrate Judge Michael J. Seng on 11/24/2014. (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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GORDON V. REID,

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Plaintiff,

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CASE NO. 1:14-cv-1163-LJO-MJS (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

v.
(ECF NO. 1)
UNITED STATES OF AMERICA, et al.,

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Defendants.

AMENDED COMPLAINT DUE WITHIN
THIRTY (30) DAYS

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Plaintiff is a federal prisoner proceeding pro se and in forma pauperis in this civil

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rights and tort action brought pursuant to Bivens v. Six Unknown Named Agents, 403

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U.S. 388 (1971) and the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680. His

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complaint is before the Court for screening.

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I.

SCREENING REQUIREMENT

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may

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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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II.

PLEADING STANDARD

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“Actions under [42 U.S.C.] § 1983 and those under Bivens are identical save for

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the replacement of a state actor under § 1983 by a federal actor under Bivens.” Van

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Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). Under Bivens, a plaintiff may sue a

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federal officer in his or her individual capacity for damages for violating the plaintiff‟s

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constitutional rights. See Bivens, 403 U.S. at 397. To state a claim under Bivens, a

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plaintiff must allege: (1) that a right secured by the Constitution of the United States was

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violated, and (2) that the alleged violation was committed by a federal actor. See Van

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Strum, 940 F.2d at 409.

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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are not required, but “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (citing 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 to relief

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that is plausible on its face.” Id. Facial plausibility demands more than the mere

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possibility that a defendant committed misconduct and, while factual allegations are

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accepted as true, legal conclusions are not. Id. at 677-78.

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III.

PLAINTIFF’S ALLEGATIONS

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Plaintiff presently is incarcerated at United States Penitentiary–Tucson, but

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complains of acts that occurred during his incarceration at United States Penitentiary–

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Atwater (“USP-Atwater”). He names the following Defendants in their individual and

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official capacities: (1) “Company X,” a business that manufactures the “black box”;

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(2) the United States of America; (3) the Federal Bureau of Prisons; (4) Warden Paul

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Copenhaver; (5) Associate Warden Parent; (6) Captain Garcia; (7) Lieutenant Fenton,

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(8) John Doe #1, prison guard; (9) John Doe #2, prison guard; (10) J. Ontiveroz, prison

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guard; (11) Oliverez, prison guard; (12) Cisneros, prison guard; and (13) Jane Doe,

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Disciplinary Hearings Officer.

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Plaintiff‟s allegations may be summarized essentially as follows:

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On October 30, 2012, Plaintiff was housed in segregation. He and his cell mate

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were put in restraints and removed from their cell. They were not allowed to pack their

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personal property or designate who the property belonged to. Defendant Cisneros

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removed Plaintiff‟s property from the cell. Plaintiff did not receive his MP3 player when

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his belongings were returned to him.

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On April 3, 2013, Defendants John Doe #1, John Doe #2, Fenton, Garcia, Parent,

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and Copenhaver placed Plaintiff in hard restraints for 24 hours without cause or

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justification. Hard restraints include handcuffs, a “black box,” a restraining chain, and leg

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shackles. The black box is placed over handcuffs, making them immobile. The black box

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and handcuffs chafed Plaintiff‟s wrists, causing pain and permanent scarring.

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Defendants intended to inflict pain on Plaintiff. Defendants knew that Plaintiff would be

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unable to sleep, eat, or defecate while he was “black boxed.”

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Hard restraints are permitted only if necessary to protect an inmate from himself

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or others, or to protect property. Plaintiff did not engage in conduct warranting the use of

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hard restraints. Placement in hard restraints must be reviewed every two hours.

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Defendants fabricated a basis for keeping Plaintiff in hard restraints.

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On April 14, 2013, Plaintiff was handcuffed behind the back. Defendant Ontiveroz

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grabbed Plaintiff and slammed him into the wall, floor, and an iron railing. Plaintiff

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suffered a concussion and headaches.

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On May 1, 2013, Defendants John Doe #1, John Doe #2, Fenton, Garcia, Parent,

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and Copenhaver placed Plaintiff in hard restraints for 48 hours without cause or

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justification and fabricated a basis for keeping Plaintiff in hard restraints.

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On May 3, 2013, Defendants Ontiveroz and Fenton, within the presence of

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Defendants Garcia and Parent, removed the black box, handcuffed Plaintiff behind his

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back, and escorted him to another cell occupied by two other prisoners. The other

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prisoners threatened to harm Plaintiff if he was placed in the cell. Plaintiff objected to

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being placed in the cell. The other prisoners were handcuffed behind their backs and

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attempted to shove Plaintiff as Plaintiff was being forced into the cell. One of the

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prisoners was injured. Defendants exited the cell and locked the door. The injured

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prisoner requested medical attention. Defendant Ontiveroz falsely stated that the

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prisoner reported being bit by Plaintiff. The prisoner actually was injured by one of the

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prison guards.

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A “use of force” team escorted Plaintiff to a hard cell. Defendants Ontiveroz, John

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Doe #1, John Doe #2, Fenton, Garcia, Parent, and Copenhaver placed Plaintiff in hard

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restraints and restrained him to a mattress and concrete slab for 24 hours.

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Defendant Ontiveroz wrote a false incident report charging Plaintiff with assaulting

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and kidnapping the other, injured prisoner. The report was written in retaliation for

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Plaintiff having reported Defendant Ontiveroz‟s April 14, 2013 assault against him.

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Defendant Jane Doe reviewed the incident report written by Defendant Ontiveroz

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and conducted a disciplinary hearing. Plaintiff called the injured prisoner as a witness.

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The prisoner agreed to testify that staff caused his injury, that he was not bitten, and that

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he did not tell Defendant Ontiveroz that Plaintiff caused his injury. Plaintiff was not

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permitted to hear the prisoner‟s testimony. Afterward, the injured prisoner assured

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Plaintiff he had given testimony favorable to Plaintiff. However, Defendant Jane Doe

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mischaracterized the testimony as supporting Defendant Ontiveroz‟s version of the

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events.

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Defendant Jane Doe found that Plaintiff had committed the charged offenses and

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imposed 45 days of disciplinary segregation, a 45-day loss of good time credit, and

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deprivation of other privileges. Defendant Jane Doe did not provide Plaintiff with a

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disciplinary hearing report, thereby frustrating Plaintiff‟s ability to appeal her decision.

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At various times between September 27, 2012 to June 17, 2014, Defendants

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Ontiveroz, Oliverez, and Cisneros deprived Plaintiff of outdoor exercise for minor and

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trivial reasons. Plaintiff complained to Defendants John Doe #1, John Doe #2, Cisneros,

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Ontiveroz, Oliverez, Fenton, Garcia, and Copenhaver. These Defendants approved the

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deprivation of Plaintiff‟s outdoor exercise.

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Plaintiff seeks compensatory and punitive damages.
IV.

ANALYSIS

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A.

Unrelated Claims

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Federal Rule of Civil Procedure 18(a) states: “A party asserting a claim,

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

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claims, as many claims as it has against an opposing party.” “Thus multiple claims

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against a single party are fine, but Claim A against Defendant 1 should not be joined

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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

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claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the

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required filing fees – for the Prison Litigation Reform Act limits to 3 the number of

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frivolous suits or appeals that any prisoner may file without prepayment of the required

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fees.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (citing 28 U.S.C. § 1915(g));

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see also Fed. R. Civ. P. 20(a)(2) (“Persons . . . may be joined in one action as

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defendants if . . . any right to relief is asserted against them jointly, severally, or in the

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alternative with respect to or arising out of the same transaction, occurrence, or series of

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transactions or occurrences . . . .”)

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Plaintiff‟s claims generally are unrelated to one another. They encompass a range

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of complaints: the denial of outdoor exercise, the loss of his MP3 player, excessive force,

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the use of restraints, retaliation, and disciplinary procedures. Several claims involve

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different defendants and do not arise out of the same transaction or occurrence. These

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claims may not all be joined in this action.

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Plaintiff will be given leave to amend. If he chooses to do so, he must decide

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which transaction or occurrence he wishes to pursue in this action. He may join other

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claims involving the defendants involved in that transaction or occurrence. He may not

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join unrelated claims against additional defendants.

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The following sections of this Order provide legal standards applicable to named
Defendants and what the Court believes may be Plaintiff‟s intended claims.
B.

Proper Defendants in a Bivens Action

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Under the doctrine of sovereign immunity, a Bivens action will not lie against the

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United States, agencies of the United States, or federal agents in their official capacity.

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See FDIC v. Meyer, 510 U.S. 471, 486 (1994); Vaccaro v. Dobre, 81 F.3d 854, 857 (9th

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Cir. 1996); Cato v. United States, 70 F.3d 1103, 1110 (9th Cir. 1995). To the extent that

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Plaintiff seeks to sue the United States, the Federal Bureau of Prisons, or federal officers

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in their official capacities under Bivens, such claims are barred by the doctrine of

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sovereign immunity. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Plaintiff

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also may not recover Bivens damages against “Company X,” a private corporation. Corr.

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Servs. Corp. v. Malesko, 534 U.S. 61, 63 (2001) (declining to extend Bivens damages

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action to allow for recovery against private corporation acting under contract with the

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federal government).

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C.

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Plaintiff may intend to bring a Fourth Amendment claim for the deprivation of his

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Deprivation of Property

MP3 player.

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The Unites States Supreme Court has held that “[a] right of privacy in traditional

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Fourth Amendment terms is fundamentally incompatible with the close and continual

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surveillance of inmates and their cells required to ensure institutional security and

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internal order.” Hudson v. Palmer, 468 U.S. 517, 527 (1984). Thus, “the Fourth

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Amendment‟s prohibition on unreasonable searches does not apply in prison cells.” Id.

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at 530. Likewise, a prisoner does not have a Fourth Amendment right to be free from

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the seizure of his personal property. Id. at 528 n.8.

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However, the Due Process Clause protects prisoners from being deprived of

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property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

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While the deprivation of property pursuant to an established government procedure is

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actionable under the Due Process Clause, Hudson, 468 U.S. at 532 (1984) (citing Logan

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v. Zimmerman Brush Co., 455 U.S. 422, 435–36 (1982),1 neither negligent nor

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unauthorized intentional deprivations of property by a governmental employee

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“constitute a violation of the procedural requirements of the Due Process Clause of the

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Fourteenth Amendment if a meaningful post deprivation remedy for the loss is available.”

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Hudson, 468 U.S. at 533; see also Raditch v. United States, 929 F.2d 478, 481 (9th Cir.

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1991) (“Although Hudson involved § 1983 and the Fourteenth Amendment, the same

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due process principles apply to the federal government through the Fifth Amendment.”).

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D.

Seizure

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Plaintiff alleges that the use of hard restraints without justification constituted an

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unlawful seizure in violation of the Fourth Amendment. Although the protections of the

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Fourth Amendment extend to incarcerated persons, Thompson v. Souza, 111 F.3d 694,

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699 (9th Cir. 1997), Plaintiff‟s claim is more properly addressed as a conditions of

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confinement claim under the Eighth Amendment.

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E.

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It appears Plaintiff wishes to allege Eighth Amendment claims regarding the April

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14, 2013 incident involving Defendant Ontiveroz, the use of hard restraints, and the

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deprivation of outdoor exercise.

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Eighth Amendment

The Cruel and Unusual Punishment Clause of the Eighth Amendment protects

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An authorized deprivation is one carried out pursuant to established state procedures, regulations, or
statutes. Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir.1985); see also Knudson v. City of Ellensburg,
832 F.2d 1142, 1149 (9th Cir.1987).

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prisoners from the use of excessive physical force and from inhumane conditions of

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confinement. Farmer v. Brennan, 511 U.S. 825, 832 (1994).

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1.

Excessive Force

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To state an excessive force claim, a plaintiff must allege facts to show that the

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use of force involved an “unnecessary and wanton infliction of pain.” Jeffers v. Gomez,

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267 F.3d 895, 910 (9th Cir. 2001) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).

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Whether the force applied inflicted unnecessary and wanton pain turns on whether the

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“force was applied in a good-faith effort to maintain or restore discipline, or maliciously

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and sadistically to cause harm.” Hudson, 503 U.S. at 6-7. The Court must look at the

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need for application of force; the relationship between that need and the amount of force

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applied; the extent of the injury inflicted; the extent of the threat to the safety of staff and

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inmates as reasonably perceived by prison officials; and any efforts made to temper the

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severity of the response. See Whitley, 475 U.S. at 321.

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Not “every malevolent touch by a prison guard gives rise to a federal cause of

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action.” Hudson, 503 U.S. at 9. “The Eighth Amendment's prohibition of cruel and

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unusual punishments necessarily excludes from constitutional recognition de minimis

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uses of physical force, provided that the use of force is not of a sort repugnant to the

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conscience of mankind.” Id. at 9-10 (internal quotation marks omitted); see also Oliver v.

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Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard

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examines de minimis uses of force, not de minimis injuries).

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2.

Conditions of Confinement

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A conditions of confinement claim has both an objective and a subjective

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component. See Farmer, 511 U.S. at 834. “First, the deprivation alleged must be . . .

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sufficiently serious,” and must “result in the denial of the minimal civilized measure of

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life‟s necessities.” Id. “[E]xtreme deprivations are required to make out a conditions-of-

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confinement claim.” Hudson, 503 U.S. at 9. While the temporary denial of outdoor

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exercise with no medical effects is not a substantial deprivation, May v. Baldwin, 109

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F.3d 557, 565 (9th Cir. 1997), the deprivation of regular outdoor exercise for a longer

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period may be sufficient to meet the objective requirement of the Eighth Amendment

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analysis. Lopez v. Smith, 203 F.3d 1122, 1132-33 (9th Cir. 2000) (denial of all outdoor

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exercise for six weeks meets objective Eighth Amendment requirement); Allen, 48 F.3d

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at 1086-88 (forty-five minutes of outdoor exercise per week for six weeks meets

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objective Eighth Amendment requirement).

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Second, the prison official must have acted with “deliberate indifference” to a

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substantial risk of serious harm to the inmate. Farmer, 511 U.S. at 834. “Mere

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negligence is not sufficient to establish liability.” Frost v. Agnos, 152 F.3d 1124, 1128

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(9th Cir. 1998). Rather, a plaintiff must set forth facts to show that a defendant knew of,

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but disregarded, an excessive risk to inmate safety. Farmer, 511 U.S. at 837. That is,

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“the official must both be aware of facts from which the inference could be drawn that a

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substantial risk of serious harm exists, and he must also draw the inference.” Id.

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F.

First Amendment Retaliation

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Plaintiff wishes to allege a First Amendment retaliation claim against Defendant

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Ontiveroz for writing a false incident report regarding the alleged altercation between

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Plaintiff and another prisoner.

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“Within the prison context, a viable claim of First Amendment retaliation entails

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five basic elements: (1) An assertion that a state actor took some adverse action against

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an inmate (2) because of (3) that prisoner‟s protected conduct, and that such action (4)

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chilled the inmate‟s exercise of his First Amendment rights, and (5) the action did not

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reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,

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567-68 (9th Cir. 2005).

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The second element focuses on causation and motive. See Brodheim v. Cry, 584

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F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his protected conduct was a

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“„substantial‟ or „motivating‟ factor behind the defendant‟s conduct.” Id. (quoting

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Sorrano‟s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Although it can

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be difficult to establish the motive or intent of the defendant, a plaintiff may rely on

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circumstantial evidence. Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that

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a prisoner established a triable issue of fact regarding prison officials‟ retaliatory motives

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by raising issues of suspect timing, evidence, and statements); Hines v. Gomez, 108

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F.3d 265, 267-68 (9th Cir. 1997); Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995)

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(“timing can properly be considered as circumstantial evidence of retaliatory intent”).

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In terms of the third prerequisite, filing a grievance is a protected action under the
First Amendment. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989).

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With respect to the fourth prong, “[it] would be unjust to allow a defendant to

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escape liability for a First Amendment violation merely because an unusually determined

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plaintiff persists in his protected activity . . . .” Mendocino Envtl. Ctr. v. Mendocino Cnty.,

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192 F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an

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official‟s acts would chill or silence a person of ordinary firmness from future First

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Amendment activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192

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F.3d at 1300).

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With respect to the fifth prong, a prisoner must affirmatively allege that “„the prison

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authorities‟ retaliatory action did not advance legitimate goals of the correctional

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institution or was not tailored narrowly enough to achieve such goals.” Rizzo v. Dawson,

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778 F.2d 527, 532 (9th Cir. 1985).

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G.

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Plaintiff alleges that his procedural due process rights were violated in his

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Procedural Due Process

disciplinary proceedings.

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The Due Process component of the Fifth Amendment entitles prisoners to certain

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processes before they are subjected to administrative or disciplinary hearings and

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classifications. Where the government has made good time credit subject to forfeiture

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only for serious misbehavior, prisoners subject to a loss of good-time credits must be

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given advance written notice of the claimed violation, a right to call witnesses and

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present documentary evidence where it would not be unduly hazardous to institutional

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safety or correctional goals, and a written statement of the finder of fact as to the

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evidence relied upon and the reasons for the disciplinary action taken. See Wolff v.

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McDonnell, 418 U.S. at 563–66. If the inmate is illiterate, or the issue is so complex that

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it is unlikely the inmate will be able to collect and present the evidence necessary for an

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adequate comprehension of the case, the inmate should have access to help from staff

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or a sufficiently competent inmate designated by the staff. However, confrontation,

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cross-examination, and counsel are not required. Id. at 567-70. The decision to revoke

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such good time credits must be supported by some evidence in the record.

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Superintendent v. Hill, 472 U.S. 445, 454 (1985).

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H.

Heck Bar

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Often referred to as the Heck bar, the favorable termination rule bars any civil

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rights claim which, if successful, would demonstrate the invalidity of confinement or its

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duration. Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005); Heck v. Humphrey, 512 U.S.

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477, 489 (1994) (until and unless favorable termination of the conviction or sentence

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occurs, no cause of action under § 1983 exists); Martin v. Sias, 88 F.3d 774, 775 (9th

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Cir. 1996) (extending rule to Bivens actions).

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It is unclear from Plaintiff‟s complaint whether the 45-day loss of good time credit

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following his disciplinary proceedings will affect the length of his sentence. Ramirez v.

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Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (the application of Heck “turns solely on

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whether a successful § 1983 action would necessarily render invalid a[n] . . .

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administrative sanction that affected the length of the prisoner‟s confinement”).

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Nonetheless, Plaintiff is advised that he may not challenge the duration of his

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confinement in a Bivens action, and instead must do so, if at all, in a habeas corpus

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proceeding.

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I.

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Plaintiff has a constitutional right of access to the courts, and prison officials may

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not actively interfere with his right to litigate. Silva v. Di Vittorio, 658 F.3d 1090, 1101-02

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(9th Cir. 2011). The right is limited to direct criminal appeals, habeas petitions, and civil

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rights actions. Lewis v. Casey, 518 U.S. 343, 354 (1996). Claims for denial of access to

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the courts may arise from the frustration or hindrance of “a litigating opportunity yet to be

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gained” (forward-looking access claim) or from the loss of a meritorious suit that cannot

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now be tried (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15

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(2002). A plaintiff must show that he suffered an “actual injury” i.e., prejudice with

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respect to contemplated or existing litigation, such as the inability to meet a filing

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deadline or present a non-frivolous claim. Lewis, 518 U.S. at 348-49. An “actual injury” is

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one that hinders the plaintiff‟s ability to pursue a legal claim. Id. at 351.

Access to Courts

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J.

Federal Tort Claims Act

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The FTCA, 28 U.S.C. §§ 1346(b), 2671–2680, waives the sovereign immunity of

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the United States for certain torts committed by federal employees. FDIC v. Meyer, 510

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U.S. 471 (1994). The FTCA provides that district courts have exclusive jurisdiction over

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civil actions against the United States for money damages “for injury or loss of property,

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or personal injury or death caused by the negligent or wrongful act or omission of any

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employee” of the federal government while acting within the scope of his office or

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employment. 28 U.S.C. § 1346(b)(1). The FTCA allows federal inmates to sue the United

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States for injuries sustained while incarcerated. 28 U.S.C. § 2674.

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The United States is the only proper defendant in a suit brought pursuant to the

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FTCA. FDIC v. Craft, 157 F.3d 697, 706 (9th Cir. 1998); Kennedy v. United States Postal

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Serv., 145 F.3d 1077, 1078 (9th Cir. 1998). “A claim against [a federal agency] in its own

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name is not a claim against the United States.” Kennedy, 145 F.3d at 1078. Nor is an

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agency a proper defendant under the FTCA. Craft, 157 F.3d at 706 (citing Shelton v.

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United States Customs Serv., 565 F.2d 1140, 1141 (9th Cir. 1977)).

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Under the FTCA a claim must be filed with the appropriate federal agency within

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two years of its accrual and suit must be commenced within six months of the agency's

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denial of the claim. 28 U.S.C. § 2401(b). This administrative exhaustion requirement is

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mandatory and jurisdictional. McNeil v. United States, 508 U.S. 106, 113 (1993) (“The

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FTCA bars claimants from bringing suit in federal court until they have exhausted their

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administrative remedies.”). Exhaustion must be affirmatively alleged in the complaint.

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Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980).

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California law controls the substantive elements of a tort claim under the FTCA.

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See 28 U.S.C. § 1346(b)(1); Delta Sav. Bank v. U.S., 265 F.3d 1017, 1025 (9th Cir.

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2001). Under California law, a public employee is liable for injury to a prisoner

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“proximately caused by his negligent or wrongful act or omission.” Cal. Gov‟t Code

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§ 844.6(d).

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The elements of negligence under California law are: “(1) defendant‟s obligation

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to conform to a certain standard of conduct for the protection of others against

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unreasonable risks (duty); (2) failure to conform to that standard (breach of duty); (3) a

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reasonably close connection between the defendant‟s conduct and resulting injuries

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(proximate cause); and (4) actual loss (damages).‟” Corales v. Bennett, 567 F.3d 554,

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572 (9th Cir. 2009) (quoting McGarry v. Sax, 70 Cal. Rptr. 3d 519 (2008)).

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In California, the elements of a claim for civil battery based on excessive force

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are: “(1) the defendant intentionally touched the plaintiff, (2) the defendant used

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unreasonable force to arrest, prevent the escape of, or overcome the resistance of the

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plaintiff, (3) the plaintiff did not consent to the use of that force, (4) the plaintiff was

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harmed, and (5) the defendant's use of unreasonable force was a substantial factor in

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causing the plaintiff's harm.” Pryor v. City of Clearlake, 877 F. Supp. 2d 929, 952 (N.D.

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Cal. 2012). “A claim for assault requires, among other elements, proof that the defendant

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threatened to touch the plaintiff in a harmful or offensive manner.” Id.

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Plaintiff also wishes to allege a tort of “unlawful restraint.” However, Plaintiff cites

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no authority to support the existence of such a tort under the facts of this case, and the

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Court finds none.

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V.

CONCLUSION AND ORDER

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Plaintiff‟s complaint contains unrelated claims against different defendants in

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violation of Federal Rule of Civil Procedure 20(a)(2). The Court will grant Plaintiff an

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opportunity to file an amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th

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Cir. 1987). Plaintiff is advised that, if he chooses to amend, he may only allege claims

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that (a) arise out of the same transaction, occurrence, or series of transactions or

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occurrences, and (b) present questions of law or fact common to all defendants named

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therein. Fed. R. Civ. P. 20(a)(2). Plaintiff must file individual actions for unrelated claims

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against unrelated defendants.

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If Plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a

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deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth

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“sufficient factual matter . . . to „state a claim that is plausible on its face.‟” Id. at 678

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(quoting Twombly, 550 U.S. at 555 (2007)). Plaintiff must also demonstrate that each

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named Defendant personally participated in a deprivation of his rights. Jones v. Williams,

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297 F.3d 930, 934 (9th Cir. 2002).

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Plaintiff should note that although he has been given the opportunity to amend, it

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is not for the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th

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Cir. 2007). Plaintiff should carefully read this Screening Order and focus his efforts on

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curing the deficiencies set forth above.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. As a general rule,

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an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d

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55, 57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no

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longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged. The amended complaint should be clearly and boldly titled “First

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Amended Complaint,” refer to the appropriate case number, and be an original signed

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under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. Civ. P.

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8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations

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omitted).

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Accordingly, it is HEREBY ORDERED that:

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1.

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The Clerk‟s Office shall send Plaintiff (1) a blank civil rights complaint form

and (2) a copy of his Complaint, filed July 25, 2014;
2.

Plaintiff‟s Complaint is dismissed for failure to state a claim upon which

relief may be granted;

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3.

Plaintiff shall file an amended complaint within thirty (30) days; and

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4.

If Plaintiff fails to file an amended complaint in compliance with this order,

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the Court will recommend that this action be dismissed, with prejudice, for failure to state

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a claim and failure to comply with a court order.

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IT IS SO ORDERED.
Dated:

November 24, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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