Leos v. Rasey et al

Filing 12

ORDER DISMISSING CASE WITH LEAVE TO AMEND signed by Magistrate Judge Jennifer L. Thurston on 05/05/2015. Amended Complaint due by 6/8/2015. (Attachments: # 1 Amended Complaint Form)(Flores, E)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

JAMES LEOS,
Plaintiff,

12

ORDER DISMISSING FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND

v.

13
14

Case No. 1:14-cv-02029-LJO-JLT (PC)

(Doc. 10, 11)
RASEY, et al.,
RESPONSE DUE WITHIN THIRTY DAYS
Defendants.

15
16

Plaintiff, James Loes, is a prisoner in the custody of the California Department of

17

Corrections and Rehabilitation. In this action, he complains about his conditions of confinement.
The Court is required to screen complaints brought by prisoners seeking relief against a

18
19

governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

20

Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

21

frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary

22

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

23

§ 1915(e)(2)(B)(i)-(iii).

24

I.

Summary of Plaintiff=s Complaint

25

Plaintiff complains of acts that occurred at California Substance Abuse Treatment Facility

26

and State Prison (ASATF@) in Corcoran, California, where he is incarcerated. In his first amended

27

complaint, Plaintiff names C. Rasey and M. Stonestreet as Defendants and delineates three causes

28

of action/claims: (1) deliberate indifference/failure to protect from a known serious risk of injury
1

1

in violation of the Eighth Amendment; (2) retaliation in violation of the First Amendment; and

2

(3) negligence under California law. (Doc. 10, at pp. 11-16.)

3

Plaintiff claims he has an unspecified medical condition that was aggravated while

4

performing his job assignment. (Id., at ¶¶ 6-9.) Despite knowing of this, Plaintiff alleges that

5

Defendant Rasey ordered Plaintiff to perform his job duties and declined to give Plaintiff a

6

different job assignment. (Id.) On May 1, 2013, Plaintiff was removed from his job due to his

7

limitations. (Id., at ¶ 9.) On May 20, 2013, Plaintiff alleges that Defendant Stonestreet retaliated

8

against Plaintiff for having filed an inmate grievance by issuing a rules violation report against

9

Plaintiff charging him with unlawful influence. (Id., at ¶ 10-14.) Plaintiff then complains about

10
11

the chronological handling of three 602s. (Id., at ¶¶ 16-26.)
Plaintiff does not state any cognizable claims at this time, but may be able to correct the

12

deficiencies in his pleading and is being given the applicable standards and leave to file a second

13

amended complaint.

14
15

C.

Pleading Requirements
1. Federal Rule of Civil Procedure 8(a)

16

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited

17

exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

18

U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain

19

statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a).

20

"Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

21

the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512.

22

Detailed factual allegations are not required, but A[t]hreadbare recitals of the elements of a

23

cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556

24

U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

25

Plaintiff must set forth Asufficient factual matter, accepted as true, to >state a claim that is

26

plausible on its face.=@ Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual

27

allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S.

28

Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.
2

1

While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft,

2

580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally

3

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

4

However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze

5

v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may

6

not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit

7

Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266,

8

268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal-

9

Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

10

omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and

11

“facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

12

plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.

13

If he chooses to file a second amended complaint, Plaintiff should endeavor to make it as

14

concise as possible. He should merely state which of his constitutional rights he feels were

15

violated by each Defendant and its factual basis. Further, Plaintiff used five separate documents

16

to make up the First Amended Complaint -- a form for an amended complaint (Doc. 10, at pp. 1-

17

5); a pleading style complaint (id., at pp. 6-10); and three causes of action set apart with separate

18

caption pages (id., at pp. 11-16). Plaintiff should either utilize the form complaint that is

19

provided with this order and attach additional pages if he needs more space for any given section,

20

or submit a pleading style complaint. Either way, Plaintiff should incorporate his causes of action

21

into whichever style of complaint he chooses to utilize and should not separate them via pleading

22

caption pages.

23

2. Linkage Requirement

24

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

25
26
27
28

Every person who, under color of [state law] . . . subjects, or causes to
be subjected, any citizen of the United States . . . to the deprivation of
any rights, privileges, or immunities secured by the Constitution . . .
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
3

1

42 U.S.C. ' 1983. The statute plainly requires there be an actual connection or link between the

2

actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See

3

Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

4

(1976). The Ninth Circuit has held that A[a] person >subjects= another to the deprivation of a

5

constitutional right, within the meaning of section 1983, if he does an affirmative act, participates

6

in another=s affirmative acts or omits to perform an act which he is legally required to do that

7

causes the deprivation of which complaint is made.@ Johnson v. Duffy, 588 F.2d 740, 743 (9th

8

Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff must link each named

9

defendant with some affirmative act or omission that demonstrates a violation of Plaintiff=s

10

federal rights. He must state which Defendant(s) he feels are responsible for each violation of his

11

constitutional rights and their factual basis as his Complaint must put each Defendant on notice of

12

Plaintiff=s claims against him or her. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004).

13

3. Federal Rule of Civil Procedure 18(a)

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

The Court is unable to discern specific relationship between Plaintiff's claims. It appears

25

that Plaintiff is attempting to state a deliberate indifference claim against Defendant Rasey for

26

failing to protect him from a known risk of serious medical injury by forcing Plaintiff to continue

27

in a job assignment despite his medical condition. It appears that Plaintiff is attempting to state a

28

retaliation claim against Defendant Stonestreet for retaliating against Plaintiff for filing a 602
4

1

inmate appeal. However, there are no allegations to show that these claims and/or events are

2

related in any way. Plaintiff is advised that claims that do not comply with Rule 18(a) are subject

3

to being stricken.

4

D.

5

1. Eighth Amendment -- Deliberate Indifference/Failure to Protect

6
7
8
9
10
11
12
13

Claims for Relief

"The treatment a prisoner receives in prison and the conditions under which he is confined
are subject to scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832,
114 S.Ct. 1970 (1994) (citing Helling v. McKinney, 509 U.S. 25, 31 (1993). Prison officials have
a duty "to take reasonable measures to guarantee the safety of inmates, which has been interpreted
to include a duty to protect prisoners." Labatad v. Corrections Corp. of America, 714 F.3d 1155,
1160 (citing Farmer, 511 U.S. at 832-33; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.
2005)).
To establish a violation of this duty, the prisoner must "show that the officials acted with

14

deliberate indifference to threat of serious harm or injury to an inmate." Labatad, at 1160 (citing

15

Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). This involves both objective

16

and subjective components.

17

First, objectively, the alleged deprivation must be "sufficiently serious" and where a

18

failure to prevent harm is alleged, "the inmate must show that he is incarcerated under conditions

19

posing a substantial risk of serious harm." Id. at 834, quoting Rhodes v. Chapman, 452 U.S. 337,

20

349, 101 S.Ct. 2392 (1981). Second, subjectively, the prison official must "know of and

21

disregard an excessive risk to inmate health or safety." Id. at 837; Anderson v. County of Kern,

22

45 F.3d 1310, 1313 (9th Cir. 1995). A prison official must "be aware of facts from which the

23

inference could be drawn that a substantial risk of serious harm exists, and . . . must also draw the

24

inference." Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Liability may follow only if a prison

25

official "knows that inmates face a substantial risk of serious harm and disregards that risk by

26

failing to take reasonable measures to abate it." Id. at 847, 114 S.Ct. 1970.

27

Further, the Supreme Court has stated that a remedy for unsafe conditions need not await

28
5

1

a tragic event; rather, where a risk/injury has yet to occur, the plaintiff's burden would be to prove

2

that his future health/safety is unreasonably endangered, "that it is contrary to current standards of

3

decency for anyone to be so exposed against his will, and that prison officials are deliberately

4

indifferent to his plight." Helling, 509 U.S. at 33-35.

5

The question under the Eighth Amendment is whether prison officials, acting with

6

deliberate indifference, exposed a prisoner to a sufficiently substantial “risk of serious damage to

7

his future health . . . .” Farmer, at 843 (citing Helling, 509 U.S. at 35). The Supreme Court has

8

explained that “deliberate indifference entails something more than mere negligence . . . [but]

9

something less than acts or omissions for the very purpose of causing harm or with the knowledge

10

that harm will result.” Id., at 835. The Court defined this “deliberate indifference” standard as

11

equal to “recklessness,” in which “a person disregards a risk of harm of which he is aware.” Id.,

12

at 836-37.

13

Plaintiff fails to allege any facts regarding his medical condition that would make his job

14

assignment in the kitchen pose an excessive risk to his health or safety. Further, Plaintiff's

15

allegations that he told Defendant Rasey of his 2007 injuries, his need to take medication, and his

16

limited abilities are nothing more than legal conclusions that need not be accepted as true. Iqbal.

17

at 678. Without more, Plaintiff fails to show that Defendant Rasey was deliberately indifferent to

18

a substantial risk of serious harm to Plaintiff. Thus, Plaintiff fails to state a cognizable claim for

19

deliberate indifference against Defendant Rasey.

20
21

2. First Amendment -- Retaliation
Prisoners have a First Amendment right to file grievances against prison officials and to

22

be free from retaliation for doing so. Waitson v. Carter, 668 F.3d 1108, 1114-1115 (9th Cir.

23

2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.2009). A retaliation claim has five

24

elements. Id. at 1114.

25

First, the plaintiff must allege that the retaliated-against conduct is protected. Id. The

26

filing of an inmate grievance is protected conduct, Rhodes v. Robinson, 408 F.3d 559, 568 (9th

27

Cir. 2005), as are the rights to speech or to petition the government, Rizzo v. Dawson, 778 F.2d

28

527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989);
6

1

Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Second, the plaintiff must show the

2

defendant took adverse action against the plaintiff. Rhodes, at 567. Third, the plaintiff must

3

allege a causal connection between the adverse action and the protected conduct. Waitson, 668

4

F.3d at 1114. Fourth, the plaintiff must allege that the “official’s acts would chill or silence a

5

person of ordinary firmness from future First Amendment activities.” Rhodes, 408 F.3d at 568

6

(internal quotation marks and emphasis omitted). Fifth, the plaintiff must allege “that the prison

7

authorities’ retaliatory action did not advance legitimate goals of the correctional institution. . . .”

8

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

9

It bears repeating that while Plaintiff need only allege facts sufficient to support a

10

plausible claim for relief, the mere possibility of misconduct is not sufficient, Iqbal, 556 U.S. at

11

678-79, and the Court is “not required to indulge unwarranted inferences,” Doe I v. Wal-Mart

12

Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

13

The conduct identified by Plaintiff as retaliatory must have been motivated by his engaging in a

14

protected activity, and the conduct must not have reasonably advanced a legitimate penological

15

goal. Brodheim, 584 F.3d at 1271-72 (citations omitted). Thus, mere allegations that Plaintiff

16

engaged in protected activity, without knowledge resulting in animus by a Defendant, is

17

insufficient to show that Plaintiff=s protected activity was the motivating factor behind a

18

Defendant’s actions.

19

Plaintiff's allegations that Defendant Stonestreet retaliated against Plaintiff on May 20,

20

2013 for Plaintiff filing a 602 by issuing an RVR for unlawful influence is conclusory and need

21

not be accepted. Iqbal. at 678. Plaintiff must allege facts to show that Defendant Stonestreet

22

issued the RVR against him to retaliate for Plaintiff's 602 -- just the fact that the RVR was issued

23

after Plaintiff filed a 602 is insufficient. Plaintiff thus fails to state a cognizable retaliation claim

24

against Defendant Stonestreet.

25
26
27
28

3. Claims Under California Law -- Negligence
a. Negligence
"In order to establish liability on a negligence theory, a plaintiff must prove duty, breach,
causation and damages. The threshold element of a cause of action for negligence is the existence
7

1

of a duty to use due care toward an interest of another that enjoys legal protection against

2

unintentional invasion. Whether this essential prerequisite to a negligence cause of action has

3

been satisfied in a particular case is a question of law to be resolved by the court. To say that

4

someone owes another a duty of care is a shorthand statement of a conclusion, rather than an aid

5

to analysis in itself. [D]uty is not sacrosanct in itself, but only an expression of the sum total of

6

those considerations of policy which lead the law to say that the particular plaintiff is entitled to

7

protection. [L]egal duties are not discoverable facts of nature, but merely conclusory expressions

8

that, in cases of a particular type, liability should be imposed for damage done.” Los Angeles

9

Memorial Coliseum Commission v. Insomaniac, Inc. 233 Cal.App.4th 803, 908 (2015) (citations

10

and quotations omitted).

11

b. California Tort Claims Act
Under the California Tort Claims Act (“CTCA”), set forth in California Government Code

12
13

sections 810 et seq., a plaintiff may not bring a suit for monetary damages against a public

14

employee or entity unless the plaintiff first presented the claim to the California Victim

15

Compensation and Government Claims Board, and the Board acted on the claim, or the time for

16

doing so expired. “The Tort Claims Act requires that any civil complaint for money or damages

17

first be presented to and rejected by the pertinent public entity.” Munoz v. California, 33

18

Cal.App.4th 1767, 1776 (1995). The purpose of this requirement is “to provide the public entity

19

sufficient information to enable it to adequately investigate claims and to settle them, if

20

appropriate, without the expense of litigation.” City of San Jose v. Superior Court, 12 Cal.3d

21

447, 455 (1974) (citations omitted). Compliance with this “claim presentation requirement”

22

constitutes an element of a cause of action for damages against a public entity or official. State v.

23

Superior Court (Bodde), 32 Cal.4th 1234, 1244 (2004). Thus, in the state courts, “failure to

24

allege facts demonstrating or excusing compliance with the claim presentation requirement

25

subjects a claim against a public entity to a demurrer for failure to state a cause of action.” Id. at

26

1239 (fn.omitted). Notably, here, Plaintiff alleges compliance with the CTCA. (Doc. 10, at ¶

27

32.)

28

///
8

1

c. Supplemental Jurisdiction
Pursuant to 28 U.S.C. ' 1367(a), in any civil action in which the district court has original

2
3

jurisdiction, the district court Ashall have supplemental jurisdiction over all other claims in the

4

action within such original jurisdiction that they form part of the same case or controversy under

5

Article III,@ except as provided in subsections (b) and (c). A[O]nce judicial power exists under '

6

1367(a), retention of supplemental jurisdiction over state law claims under 1367(c) is

7

discretionary.@ Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). AThe district

8

court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . .

9

the district court has dismissed all claims over which it has original jurisdiction.@ 28 U.S.C. '

10

1367(c)(3). The Supreme Court has cautioned that Aif the federal claims are dismissed before

11

trial, . . . the state claims should be dismissed as well.@ United Mine Workers of America v.

12

Gibbs, 383 U.S. 715, 726 (1966).

13

Jurisdiction over Plaintiff's claim of negligence under California law will only be allowed

14

to proceed in this Court as long as he has federal claims pending.

15

II.

16

CONCLUSION
For the reasons set forth above, Plaintiff's First Amended Complaint is dismissed, with

17

leave to file a second amended complaint within thirty days. If Plaintiff needs an extension of

18

time to comply with this order, Plaintiff shall file a motion seeking an extension of time no later

19

than thirty days from the date of service of this order.

20

Plaintiff must demonstrate in any second amended complaint how the conditions

21

complained of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v.

22

Cassidy, 625 F.2d 227 (9th Cir. 1980). The second amended complaint must allege in specific

23

terms how each named defendant is involved. There can be no liability under section 1983 unless

24

there is some affirmative link or connection between a defendant's actions and the claimed

25

deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.

26

1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

27

Plaintiff's second amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short

28

and plain statement must "give the defendant fair notice of what the . . . claim is and the grounds
9

1

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

2

Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the "[f]actual allegations must be

3

[sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. 127, 555

4

(2007) (citations omitted).

5

Plaintiff is further advised that an amended complaint supercedes the original, Lacey v.

6

Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29,

7

2012) (en banc), and must be "complete in itself without reference to the prior or superceded

8

pleading," Local Rule 220.

9

The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified

10

by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff

11

may not change the nature of this suit by adding new, unrelated claims in a second amended

12

complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints).

13

Based on the foregoing, it is HEREBY ORDERED that:

14

1.

Plaintiff's First Amended Complaint is dismissed, with leave to amend;

15

2.

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

16

3.

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

17
18
19

second amended complaint curing the deficiencies identified in this order,
4.

If Plaintiff fails to comply with this order, this action will be dismissed for failure
to obey a court order;

20
21
22
23
24
25
26
27
28
10

1
2

5.

Defendants need not respond to the action until the Court determines there has

been a cognizable claim stated.

3
4
5

IT IS SO ORDERED.
Dated:

May 5, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11