Young v. Biter et al

Filing 20

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Barbara A. McAuliffe on 6/8/2015. Amended Complaint due by 7/13/2015. (Attachments: # 1 Complaint Form)(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HOWARD ALLEN YOUNG,

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Plaintiff,

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v.
M. D. BITER, et al.,

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Defendants.

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1:14-cv-01942-BAM (PC)
ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND
(ECF No. 1)
THIRTY-DAY DEADLINE

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I.

Screening Requirement and Standard
Plaintiff Howard Allen Young (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 2000cc-1

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(Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)). Plaintiff’s

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complaint, filed on December 5, 2014, is currently before the Court for screening.

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

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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. §

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1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28

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U.S.C. § 1915(e)(2)(B)(ii).

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

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pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65

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(2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge

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unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires

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sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

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for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks omitted);

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Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility

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that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short

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of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quotation marks

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omitted); Moss, 572 F.3d at 969.

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II.

Plaintiff’s Allegations

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Plaintiff is currently housed at Kern Valley State Prison, where the events in the

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complaint are alleged to have occurred. Plaintiff names the following defendants: (1) Warden

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M. D. Biter; (2) Appeals Coordinator S. Tallerico; (3) Community Resource Manager Cherylee

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Wegman; (4) Jewish Chaplain Paul Shleffar; (5) CDCR A Yard Chaplain (Islamic) Maurice

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Howard; (6) Former Inmate Assignment Staff K. Doran; and (7) the California Department of

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Corrections and Rehabilitation (“CDCR”).

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Plaintiff is a Messianic Jew, claiming that he is being denied Kosher Diet Meals by

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CDCR, Rabbi Paul Shleffar and Cherylee Wegman because they do not recognize Messianic

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Judaism. Plaintiff further claims that Warden Biter, Cherylee Wegman and Maurice Howard

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interfere with his religious practice by failing to grant his Jewish Services Proposal and Proposal

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Chrono. Plaintiff asserts that Cherylee Wegman granted the April 2014 Passover Event, but no

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food was provided to him. Plaintiff also asserts that S. Tallerico has wrongfully screened out his

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appeals, which has interfered with his access to the courts or the appeals process.

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In Claim 1, Plaintiff alleges that he is a member of the United Messianic Jewish

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Assembly (UMJA) and has been given chartered authority to represent and head Messianic

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Jewish Services. Plaintiff asserts that he has been wrongfully denied both Kosher meals and

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Inmate Minister status by Rabbi Shleffar, Cherylee Wegman and Warden Biter, even though

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CDCR recognizes him as a representative of Jewish denomination.

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Plaintiff currently heads the Messianic Jewish services at Kern Valley State Prison and

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purports to assert this complaint on behalf of all those participating in the A-Yard Messianic

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Jewish Services.

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According to exhibits attached to Plaintiff’s complaint, he has pursued more than one

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habeas corpus action in Kern County Superior Court alleging that the prison was unduly

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obstructing the practice of his Messianic Jewish Faith. (Exs. A, B.) Although exhibits attached

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to his complaint demonstrate that he was denied Kosher meals because prison records indicated

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that Plaintiff was either Christian or Muslim, not Jewish, at least one habeas petition includes

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Plaintiff’s complaints about the kosher diet he was receiving. (Ex. B.)

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In May 2014, Plaintiff was authorized for release to participate in Messianic Jewish
services.
In Claim 2, Plaintiff alleges that following a court order on October 31, 2014, in his

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habeas action (HC 14138A), Plaintiff sought relief by way of a 602. The 602 was screened out.

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Plaintiff now seeks relief from this Court regarding his Jewish Services Proposal and the

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Proposal Chrono. Plaintiff requests injunctive relief for A yard, where Chaplain Maurice

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Howard is responsible. Plaintiff contends that since KVSP does not have a Messianic Jewish

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Chaplain and Plaintiff being the UMJA representative, Plaintiff is eligible and qualified to

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conduct all necessary Messianic Jewish Services and to minster to the religious needs of inmates

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of the Messianic Jewish Faith.

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In Claim 3, Plaintiff alleges that his attempts to seek relief have continually been stalled

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by S. Tallerico, appeals coordinator. Plaintiff contends that his 602 Appeals (KVSP-0-14-03885

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and KVSP 0-14-03779) were screened out on November 21, 2014. Plaintiff filed KVSP-0-14-

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03779 seeking participation in the Jewish Kosher Diet Program, which was denied by Rabbi Paul
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Shleffar because Plaintiff’s faith was not a recognized religion for inclusion in the kosher meal

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program. Rabbi Shleffar stated that Plaintiff should submit additional input or information in

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writing with the CDCR 3030A for re-evaluation. Plaintiff resubmitted the CDCR 3030 with

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attached letters, articles and case law.
In screening out the 602 KVSP-0-14-03779, S. Tallerico indicated that it was a duplicate

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appeal that had been previously cancelled in May 2011. Plaintiff argues that the letters and

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attachments were dated after the May 2011 denial and should be considered additional input or

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information.
Plaintiff requests that the Court order CDCR to provide him with the Jewish Kosher Diet

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meals and conduct an investigation into S. Tallerico’s screening out of 602 appeals. Plaintiff

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also seeks compensation and damages.

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In Claim 3, Plaintiff alleges that he was retaliated against and wrongfully unassigned

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from the A Yard Chapel Clerk position by Cherylee Wegman and Assignment Officer Doran

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without due process based on Plaintiff’s litigation and/or 602 efforts and his Messianic Jewish

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beliefs.

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Plaintiff also alleges that he has been wrongfully denied single cell status, that the

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procedure to grant single cell status violates the Eighth Amendment and that forced double

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celling contributes to cell fights. Plaintiff further alleges that he has been wrongfully denied out-

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of-state transfer because CDCR has not considered Plaintiff’s family situation. Plaintiff lastly

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contends that his housing status should be “STG Black Jew from Massachusetts.” Plaintiff

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claims that this status would limit any potential cell mate or allow him to be single-celled based

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on his previous 115 RVRs and psychiatric evaluation reports. Plaintiff requests transfer to San

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Quentin for Patten University courses.

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In Claim 4, Plaintiff alleges that CDCR has failed to restore all his previously forfeited

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credits that are legible for restoration. Plaintiff contends that CDCR has failed to remove, re-

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evaluate and provide Plaintiff with requested information regarding the Compas Evaluation

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Program from Plaintiff’s C-file records or to provide Plaintiff with pertinent facts about the

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margins of error, who invented the test, allow for re-test and how the test scores are evaluated
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and categorized. Plaintiff contends that CDCR has miscalculated Plaintiff’s release date by

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applying only 20% good time credits instead of 50% good time credits.
In Claim 5, Plaintiff alleges that he has been denied medicated lotion and/or A&D

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ointment for his excessively dry skin condition. Instead, Plaintiff has been told to purchase it.

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Plaintiff requests a Court order for the medicated lotion or A&D ointment, which he was

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previously prescribed on December 1, 2009.

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Plaintiff further alleges that he has received inferior dental care. When permanent

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bridges were damaged, CDCR would not replace them. Plaintiff was told that he could receive a

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removable dental plate. Plaintiff seeks a Court order requiring CDCR to repair and/or replace

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Plaintiff’s missing teeth with permanent bridges or implants.
Plaintiff also alleges that CDCR is in violation of the three judge court order by failing to

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provide him with a parole hearing date, transfer to a pre-release type facility where he could

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receive vocation/education skills and consideration for early release/re-entry hubs.
In Claim 6, Plaintiff alleges that he has had abdominal pain and discomfort for over 2

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years, which has worsened. Plaintiff contends that CDCR has not provided him with a requested

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CT scan. Plaintiff requests that this Court order CDCR to provide him with a CT scan and/or a

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referral to a specialist to find the basis for Plaintiff’s abdominal pain.
Plaintiff also alleges that he has been denied an x-ray on his left and right wrists, which

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have been painfully deteriorating. Plaintiff asserts that he was overcharged for the $5.00 co-

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payment and subject to trust account/office overcharging/withdrawals. Plaintiff also had to

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submit to a urinalysis, but was never given a copy of the results.
Plaintiff further alleges that he has been subjected to excessive strip searches, lockdowns,

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and denied yard/time outside the cell for incidents that do not involve him. Plaintiff contends

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that Warden Biter is responsible for the program status reports, lockdowns/modified programs,

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strip searches, denial of yard/time outside the cell and the supervision and training of personnel

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at KVSP.

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III.

Deficiencies of the Complaint
Plaintiff’s complaint fails to comply with Federal Rules of Civil Procedure 8 and 18, and

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fails to state a cognizable claim. As Plaintiff is proceeding pro se, he will be given an

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opportunity to amend his complaint. To assist him, Plaintiff is provided with the pleading and

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legal standards that appear applicable to his claims. Plaintiff should amend only those claims

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that he believes, in good faith, are cognizable.

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A. Pleading Requirements
1. Federal Rule of Civil Procedure 8
Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).

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As noted above, detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

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556 U.S. at 678 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as

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true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting

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Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are

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not. Id; see also Twombly, 550 U.S. at 556–557; Moss, 572 F.3d at 969.

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Plaintiff’s complaint is not a short and plain statement of his claims. Plaintiff’s factual

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allegations are not in chronological order and many of his assertions are conclusory statements.

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Plaintiff may not simply complain about every incident or issue that he has with prison officials

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in a single filing. If Plaintiff chooses to amend his complaint, he should briefly and clearly state

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the facts giving rise to his claims for relief against the named defendants.

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2. Federal Rule of Civil Procedure 18
Federal Rule of Civil Procedure 18 states that “[a] party asserting a claim, counterclaim,

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crossclaim, or third-party claim may join, as independent or alternative claims, as many claims

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as it has against an opposing party.” Fed. R. Civ. P. 18(a). “Thus multiple claims against a single

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party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B

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against Defendant 2. Unrelated claims against different defendants belong in different suits, not

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only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s] but also
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to ensure that prisoners pay the required filing fees--for the Prison Litigation Reform Act limits

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to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of

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

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1915(g)).

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Here, Plaintiff attempts to bring suit against multiple defendants for different incidents at

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different times. For example, Plaintiff complains about the denial of dental care by an

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unidentified medical provider while simultaneously complaining about the denial of Kosher

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meals by Defendants CDCR, Rabbi Paul Shleffar, Cherylee Wegman and Warden Biter.

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Plaintiff may not pursue unrelated claims against different defendants in a single action. If

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Plaintiff chooses to file an amended complaint and it fails to comply with Rule 18(a), all

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unrelated claims will be subject to dismissal.

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3. Eleventh Amendment Immunity-CDCR
Plaintiff names CDCR as a defendant. However, the Eleventh Amendment erects a

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general bar against federal lawsuits brought against the state. Wolfson v. Brammer, 616 F.3d

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1045, 1065-66 (9th Cir. 2010) (citation and quotation marks omitted). While “[t]he Eleventh

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Amendment does not bar suits against a state official for prospective relief,” Wolfson, 616 F.3d

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at 1065-66, suits against the state or its agencies are barred absolutely, regardless of the form of

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relief sought, e.g., Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct.

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900 (1984); Buckwalter v. Nevada Bd. of Medical Examiners, 678 F.3d 737, 740 n.1 (9th Cir.

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2012). Thus, Plaintiff may not maintain a claim against CDCR.

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Insofar as Plaintiff seeks relief pursuant to RLUIPA, such a claim may proceed only for

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injunctive relief against defendants acting within their official capacities. Wood v. Yordy, 753

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F.3d 899, 904 (9th Cir. 2014).

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4. Supervisory Liability
Insofar as Plaintiff attempts to impose liability against any defendants based solely on

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their roles as supervisors, he may not do so. Supervisory personnel may not be held liable under

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section 1983 for the actions of subordinate employees based on respondeat superior or vicarious

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liability. Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. Cal. Dep’t of
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Corr. and Rehab., 726 F.3d 1062, 1074–75 (9th Cir. 2013); Lacey v. Maricopa Cnty., 693 F.3d

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896, 915–16 (9th Cir. 2012) (en banc). “A supervisor may be liable only if (1) he or she is

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personally involved in the constitutional deprivation, or (2) there is a sufficient causal connection

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between the supervisor's wrongful conduct and the constitutional violation.” Crowley, 734 F.3d

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at 977 (internal quotation marks omitted); accord Lemire, 726 F.3d at 1074–75; Lacey, 693 F.3d

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at 915–16. “Under the latter theory, supervisory liability exists even without overt personal

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participation in the offensive act if supervisory officials implement a policy so deficient that the

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

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violation.” Crowley, 734 F.3d at 977 (citing Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989))

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(internal quotation marks omitted).

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B. Legal Standards
1. Free Exercise Clause of the First Amendment

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“Inmates . . . retain protections afforded by the First Amendment, including its directive

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that no law shall prohibit the free exercise of religion.” O’Lone v. Estate of Shabazz, 482 U.S.

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342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (internal quotations and citations omitted). The

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protections of the Free Exercise Clause are triggered when prison officials substantially burden

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the practice of an inmate’s religion by preventing him from engaging in conduct which he

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sincerely believes is consistent with his faith. Shakur v. Schriro, 514 F.3d 878, 884–85 (9th Cir.

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2008).

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Plaintiff complains about his ability to practice his religion, denial of his status as an
inmate minister and denial of a kosher diet.

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With regard to his religious practice, Plaintiff admits, and his exhibits demonstrate, that

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he has been released to practice his religion and services were scheduled. (ECF No. 1, p. 48-49,

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52-53.) With regard to the denial of his status as an inmate minister, this does not appear related

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to conduct which he sincerely believes is consistent with his faith. Further, this issue appears to

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have been addressed by a Petition for Writ of Habeas Corpus (HC 14138A) and was denied on

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October 31, 2014. (ECF No. 1, p. 15.) With regard to denial of a kosher diet, exhibits attached

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to the complaint demonstrate that Plaintiff had been receiving a kosher diet, but complained

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about its adequacy in habeas proceedings. (ECF No. 1, p. 47.)

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Given Plaintiff’s lack of dates and other factual contentions, the Court cannot adequately

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determine whether his constitutional rights have been violated. The Court will not scour

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Plaintiff’s exhibits, which total more than 200 pages, to find a constitutional claim. Plaintiff will

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be given leave to cure these deficiencies.

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2. Religious Land Use and Institutionalized Persons Act (“RLUIPA”)
A claim under RLUIPA may proceed only for injunctive relief against defendants acting

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within their official capacities. Wood, 753 F.3d at 904 (RLUIPA does not contemplate liability

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of government employees in individual capacity); Alvarez v. Hill, 667 F.3d 1061, 1063 (9th Cir.

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2012) (money damages not available for RLUIPA claim against defendants sued in their official

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capacity); Graddy v. Ding, 2014 WL 6634580, *3 (E.D. Cal. Nov. 21, 2014).

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To state a claim for violation of RLUIPA, Plaintiff must allege facts plausibly showing

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that the challenged policy and the practices it engenders impose a substantial burden on the

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exercise of his religious beliefs; Plaintiff bears the initial burden of persuasion on this issue.

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Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1124–25 (9th Cir. 2013)

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(quotation marks omitted).

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“Courts are expected to apply RLUIPA’s standard with due deference to the experience

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and expertise of prison and jail administrators in establishing necessary regulations and

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procedures to maintain good order, security and discipline, consistent with consideration of costs

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and limited resources.” Id. (citing Cutter v. Wilkinson, 544 U.S. 709, 723, 125 S.Ct. 2325, 161

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L.Ed.2d 1020 (2005)) (internal quotation marks omitted).

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As with his First Amendment claim, Plaintiff’s allegations are not sufficiently clear to
determine whether or not Plaintiff has stated a claim for violation of RLUIPA.
3. Appeals Processing

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Plaintiff cannot pursue any claims against staff relating to processing and review of his

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inmate appeals. The existence of an inmate appeals process does not create a protected liberty

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interest upon which Plaintiff may base a claim that he was denied a particular result or that the
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appeals process was deficient. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v.

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Adams, 855 F.2d 639, 640 (9th Cir. 1988). To state a claim under section 1983, Plaintiff must

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demonstrate personal involvement in the underlying violation of his rights, Iqbal, 556 U.S. at

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677; Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002), and liability may not be based merely

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on Plaintiff's dissatisfaction with the administrative process or a decision on an appeal, Ramirez,

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334 F.3d at 860; Mann, 855 F.2d at 640.

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4. Retaliation
Allegations of retaliation against a prisoner’s First Amendment rights to speech or to
petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532

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

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Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First

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Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some

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adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that

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such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did

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not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–

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68 (9th Cir. 2005); accord Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

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In Claim 3, Plaintiff alleges that he was retaliated against and wrongfully unassigned

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from the A Yard Chapel Clerk position by Cherylee Wegman and Assignment Officer Doran

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based on his litigation and/or 602 efforts. At best, Plaintiff’s allegations are conclusory. Further,

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he has not alleged that Defendants’ actions did not advance a legitimate correctional goal.

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5. Eighth Amendment – Medical Care
While the Eighth Amendment of the United States Constitution entitles Plaintiff to

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

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indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th

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Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th

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Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d

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1091, 1096 (9th Cir. 2006). Plaintiff “must show a serious medical need by demonstrating that

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failure to treat [his] condition could result in further significant injury or the unnecessary and
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wanton infliction of pain,” and (2) that “the defendant’s response to the need was deliberately

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indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). Deliberate indifference

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is shown by “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical

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need and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d

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at 1096). The requisite state of mind is one of subjective recklessness, which entails more than

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ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted);

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Wilhelm, 680 F.3d at 1122.

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Here, Plaintiff’s allegations regarding his medical care are scattershot, conclusory and do
not link any specific defendant to his claims of deliberate indifference to serious medical needs.

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To the extent Plaintiff merely disagrees with the course of treatment for his wrist, dry skin,

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abdominal pain and teeth, he cannot state a cognizable Eighth Amendment claim. A prisoner’s

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mere disagreement with diagnosis or treatment does not support a claim of deliberate

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indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.1989).

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6. Eighth Amendment-Conditions of Confinement
Plaintiff appears to allege that lockdowns violated his rights under the Eighth

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Amendment. Although unclear, it appears that Plaintiff is complaining about the denial of yard

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

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

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2006). Extreme deprivations are required to make out a conditions of confinement claim, and

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

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

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503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (citations and quotations omitted). In order

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to state a claim for violation of the Eighth Amendment, the plaintiff must allege facts sufficient

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to support a claim that prison officials knew of and disregarded a substantial risk of serious harm

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to the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811

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(1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

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The circumstances, nature, and duration of the deprivations are relevant in determining

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whether the conditions complained of are grave enough to form the basis of a viable Eighth

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Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006).

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Here, Plaintiff has not alleged sufficient facts to demonstrate that the conditions he is

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complaining of are grave enough to form the basis of an Eighth Amendment claim. Plaintiff

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does not include facts regarding the circumstances, nature or duration of any claimed violation.

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7. Prison Transfer
Plaintiff appears to seek a prison transfer. However, there is no substantive liberty

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interest in being housed in a particular prison and an inmate has no right to incarceration in the

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prison of his choice. Olim v. Wakinekona, 461 U.S. 238, 245, 103 S.Ct. 1741, 1745, 75 L.Ed.2d

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813 (1983); White v. Lambert, 370 F.3d 1002, 1013 (9th Cir. 2004) (overruled on other grounds

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by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010)).

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8. Good Time Credits
To the extent Plaintiff requests restoration of good time credits, he may not pursue such a

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claim in a section 1983 action. A claim for restoration of credits lies at “the core of habeas

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corpus.” Wilkinson v. Dotson, 544 U.S. 74, 79, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005)

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(quotation and citation omitted).

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9. Remedial Orders in Other Cases
To the extent that Plaintiff is attempting to base a claim on alleged violations of any order

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or remedial plan in another case, such violations do not provide an independent basis for

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damages in this action. See Cagle v. Sutherland, 334 F.3d 980, 986–87 (9th Cir. 2003) (consent

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decrees often go beyond constitutional minimum requirements, and do not create or expand

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rights); Green v. McKaskle, 788 F.2d 1116, 1123 (5th Cir. 1986) (remedial decrees remedy

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constitutional violations but do not create or enlarge constitutional rights). “[R]emedial orders . .

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. do not create ‘rights, privileges or immunities secured by the Constitution and laws’ of the

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United States.” Hart v. Cambra, 1997 WL 564059, *5 (N.D.Cal. Aug.22, 1997) (quoting Green,

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788 F.2d at 1123–24). Plaintiff may not state a section 1983 claim based on the failure to comply

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with any remedial plan or consent decree.
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C. Conclusion and Order

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Plaintiff’s complaint fails to comply with Federal Rules of Civil Procedure 8 and 18, and

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fails to state a cognizable claim upon which relief may be granted under section 1983. The Court

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will provide Plaintiff with an opportunity to amend his complaint to cure the identified

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deficiencies. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what

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

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rights. Iqbal, 556 U.S. at 676. Plaintiff also must set forth “sufficient factual matter . . . to ‘state

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a claim that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 555).

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Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated

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

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“buckshot” complaints).

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

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Lacey, 693 F.3d at 927. Therefore, Plaintiff’s amended complaint must be “complete in itself

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without reference to the prior or superseded pleading.” Local Rule 220.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

The Clerk’s Office shall send Plaintiff a complaint form;

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2.

Plaintiff’s complaint is dismissed for failure to comply with Federal Rules of

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Civil Procedure 8 and 18 and for failure state a claim.
3.

Within thirty (30) days from the date of service of this order, Plaintiff shall file a

first amended complaint; and
4.

If Plaintiff fails to comply with this order, the Court will dismiss this action

for failure to obey a court order and for failure to state a claim.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 8, 2015

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

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