Klahn v. Wasco State Prison et al

Filing 8

ORDER DISMISSING Complaint WITH LEAVE TO AMEND, signed by Magistrate Judge Sheila K. Oberto on 1/27/17. Amended Complaint Due Within Twenty One Days. (Attachments: # 1 Amended Complaint Form)(Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL P. KLAHN, Sr,

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Plaintiff,

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Case No. 1:16-cv-00342-SKO (PC)
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

v.
(Doc. 1)

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WASCO STATE PRISON, et al.,
TWENTY-ONE (21) DAY DEADLINE

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Defendants.

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INTRODUCTION

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A.

Background

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Plaintiff, Daniel P. Klahn, Sr., is a former state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. As discussed below, the

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Complaint violates Federal Rules of Civil Procedure1 8 and 18. However, Plaintiff may be able

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to state some cognizable claims, so the Complaint is dismissed with leave to file a first amended

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complaint.

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B.

Screening Requirement and Standard

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

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

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

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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The Federal Rules of Civil Procedure will be referred to as ARule *.@

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§ 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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C.

Pleading Requirements
1.

Federal Rule of Civil Procedure 8(a)

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

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

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

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

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

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

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Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs

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when a pleading says too little -- the baseline threshold of factual and legal allegations required

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was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678,

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129 S.Ct. 1937 (2009). The Rule is also violated when a pleading says too much. Cafasso, U.S.

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ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e have never

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held -- and we know of no authority supporting the proposition -- that a pleading may be of

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unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also McHenry v.

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Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8, and

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recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case

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impose unfair burdens on litigants and judges”). Plaintiff’s Complaint violates Rule 8 for saying

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too much, as he apparently has chosen to detail everything that he feels went wrong during his

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ninety-day incarceration at Wasco State Prison.

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

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

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

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

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

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

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Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.
While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft,

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

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

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

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

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

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

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

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

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

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

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
Further, “repeated and knowing violations of Federal Rule of Civil Procedure 8(a)’s ‘short

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and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g),

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when the opportunity to correct the pleadings has been afforded and there has been no

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modification within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108-09 (9th Cir.

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2013).

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

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concise as possible in no more than twenty-five (25) pages. He should simply state which of his

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constitutional rights he feels were violated by each Defendant and its factual basis. Plaintiff need

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not and should not cite legal authority for his claims in a first amended complaint. His factual

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allegations are accepted as true and need not be bolstered by legal authority at the pleading stage.

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If Plaintiff files a first amended complaint, his factual allegations will be screened under the legal

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standards and authorities stated in this order.

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2.

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Federal Rule of Civil Procedure 18(a) & 20(a)(2)

Federal Rule of Civil Procedure 18(a) allows a party asserting a claim to relief as an

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original claim, counterclaim, cross-claim, or third-party claim to join, either as independent or as

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alternate claims, as many claims as the party has against an opposing party. However, Plaintiff

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may not bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a),

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20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605,

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607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so long as (1) the

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claim(s) arise out of the same transaction or occurrence, or series of transactions and occurrences,

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and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers,

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130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America,

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623 F.3d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined under Rule 20(a)

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will the Court review the extraneous claims to determine if they may be joined under Rule 18(a),

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which permits the joinder of multiple claims against the same party.
The Court must be able to discern a relationship between Plaintiff’s claims or there must

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be a similarity of parties. The fact that all of Plaintiff’s allegations are based on the same type of

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constitutional violation (i.e. deliberate indifference to different medical issues) does not

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necessarily make claims related for purposes of Rule 18(a); nor are Plaintiff’s claims related

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because he feels the Warden, or other supervising personnel, failed to properly train or supervise

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all of the culpable actors.
All claims that do not comply with Rules 18(a) and 20(a)(2) are subject to dismissal.

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Plaintiff is cautioned that if his amended complaint sets forth improperly joined claims, the Court

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will determine which claims may proceed and which claims will be dismissed. Visendi v. Bank of

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America, N.A., 733 F3d 863, 870-71 (9th Cir. 2013). Whether any claims will be subject to

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severance by future order will depend on the viability of the claims raised in the first amended

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complaint.

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///

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//

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3.

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Linkage and Causation

Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or

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other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d

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1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);

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Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012)

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(citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation

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marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link,

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or causal connection, between each defendant’s actions or omissions and a violation of his federal

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rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013);

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Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011).

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Plaintiff’s allegations must demonstrate that each defendant personally participated in the

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deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the

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presentation of factual allegations sufficient to state a plausible claim for relief against each

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defendant. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.

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2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal,

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556 U.S. at 678; Moss, 572 F.3d at 969. However, prisoners proceeding pro se in civil rights

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actions are still entitled to have their pleadings liberally construed and to have any doubt resolved

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in their favor. Hebbe, 627 F.3d at 342.
DISCUSSION

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Plaintiff’s Allegations

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A.

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Plaintiff has been released, but complains of acts that occurred at WSP during the ninety

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(90) days he was incarcerated there. The Complaint is forty-six (46) pages in length and details

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numerous events that occurred during Plaintiff’s tenure at WSP. The Court declines to expend its

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limited resources to review and summarize Plaintiff’s allegations since the Complaint clearly

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violates Rules 8 and 18 as previously discussed. In light of Plaintiff’s pro se status, he is given

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the legal standards for the claims it appears he is attempting to state and is granted leave to file a

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first amended complaint that is no more than twenty-five (25) pages long.

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B.

Legal Standards
1.

Deliberate Indifference to Serious Medical Needs

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Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a

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prisoner's] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need

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is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton

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infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner,

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439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th

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Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th

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Cir.1997) (en banc))

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To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must

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first “show a serious medical need by demonstrating that failure to treat a prisoner=s condition

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could result in further significant injury or the unnecessary and wanton infliction of pain. Second,

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the plaintiff must show the defendants= response to the need was deliberately indifferent.”

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

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1096 (9th Cir. 2006) (quotation marks omitted)).

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“Indications that a plaintiff has a serious medical need include the existence of an injury

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that a reasonable doctor or patient would find important and worthy of comment or treatment; the

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presence of a medical condition that significantly affects an individual’s daily activities; or the

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existence of chronic or substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir.

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2014) (citation and internal quotation marks omitted); accord Wilhelm v. Rotman, 680 F.3d 1113,

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1122 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000).

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Deliberate indifference is “a state of mind more blameworthy than negligence” and

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“requires ‘more than ordinary lack of due care for the prisoner’s interests or safety.’ ” Farmer v.

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Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). Deliberate indifference is

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shown where a prison official “knows that inmates face a substantial risk of serious harm and

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disregards that risk by failing to take reasonable measures to abate it.” Id., at 847. Deliberate

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indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004).

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“Under this standard, the prison official must not only ‘be aware of the facts from which the

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inference could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also

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draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). A>If a prison official should

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have been aware of the risk, but was not, then the official has not violated the Eighth

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Amendment, no matter how severe the risk.=@ Id. (quoting Gibson v. County of Washoe, Nevada,

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290 F.3d 1175, 1188 (9th Cir. 2002)).

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In medical cases, this requires showing: (a) a purposeful act or failure to respond to a

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prisoner=s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680

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F.3d at 1122 (quoting Jett, 439 F.3d at 1096). More generally, deliberate indifference Amay

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appear when prison officials deny, delay or intentionally interfere with medical treatment, or it

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may be shown by the way in which prison physicians provide medical care.@ Id. (internal

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quotation marks omitted). Under Jett, A[a] prisoner need not show his harm was substantial.@ Id.;

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see also McGuckin, 974 F.2d at 1060 (A[A] finding that the defendant=s activities resulted in

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>substantial= harm to the prisoner is not necessary.@).

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2.

Due Process

The Fourteenth Amendment’s Due Process Clause protects persons against deprivations

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of life, liberty, or property; and those who seek to invoke its procedural protection must establish

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that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384

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(2005). Prisoners have a protected interest in their personal property, Hansen v. May, 502 F.2d

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728, 730 (9th Cir. 1974), but the procedural component of the Due Process Clause is not violated

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by a random, unauthorized deprivation of property if the state provides an adequate post-

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deprivation remedy, Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3204 (1984); Barnett

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v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994). Rather, the Due Process Clause is violated only

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when the agency “prescribes and enforces forfeitures of property without underlying statutory

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authority and competent procedural protections.” Nevada Dept. of Corrections v. Greene, 648

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F.3d 1014, 1019 (9th Cir. 2011) (citing Vance v. Barrett, 345 F.3d 1083, 1090 (9th Cir. 2003))

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(internal quotations omitted).

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A state prisoner has no cause of action under 42 U.S.C. § 1983 for an unauthorized

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deprivation of property, either intentional or negligent, by a state employee if a meaningful state

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post-deprivation remedy for the loss is available. Hudson v. Palmer, 468 U.S. 517, 533 (1984).

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California law provides an adequate post-deprivation remedy for any property deprivations.

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Barnett v. Centoni, 31 F.3d 813, 816-817 (9th Cir. 1994) (citing Cal. Gov=t Code '' 810-895).
3.

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Access to Courts

Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey,

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518 U.S. 343, 346 (1996). Claims for denial of access to the courts may arise from the frustration

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or hindrance of Aa litigating opportunity yet to be gained@ (forward-looking access claim) or from

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the loss of a meritorious suit that cannot now be tried (backward-looking claim). Christopher v.

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Harbury, 536 U.S. 403, 412-15 (2002).

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In either instance, Athe injury requirement is not satisfied by just any type of frustrated

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legal claim.@ Lewis, 518 U.S. at 354. Inmates do not enjoy a constitutionally protected right Ato

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transform themselves into litigating engines capable of filing everything from shareholder

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derivative actions to slip-and-fall claims.@ Id. at 355. Rather, the type of legal claim protected is

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limited to direct criminal appeals, habeas petitions, and civil rights actions such as those brought

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under section 1983 to vindicate basic constitutional rights. Id. at 354 (quotations and citations

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omitted). AImpairment of any other litigating capacity is simply one of the incidental (and

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perfectly constitutional) consequences of conviction and incarceration.@ Id. at 355 (emphasis in

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original).

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To assert a forward-looking access claim, the non-frivolous “underlying cause of action

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and its lost remedy must be addressed by allegations in the complaint sufficient to give fair notice

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to a defendant.” Christopher v. Harbury, 536 U.S. 403, 416 (2002). To state such a claim, the

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plaintiff must describe this “predicate claim . . . well enough to apply the ‘non-frivolous' test and

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to show that the ‘arguable’ nature of the underlying claim is more than hope.” Id. It is not

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enough for Plaintiff merely to conclude that the claim was non-frivolous. The complaint should

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instead “state the underlying claim in accordance with Federal Rule of Civil Procedure 8(a) just

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as if it were being independently pursued, and a like plain statement should describe any remedy

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available under the access claim and presently unique to it.” Id. at 417-418.

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Moreover, when a prisoner asserts that he was denied access to the courts and seeks a

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remedy for a lost opportunity to present a legal claim, he must show: (1) the loss of a non-

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frivolous or arguable underlying claim; (2) the official acts that frustrated the litigation; and (3) a

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remedy that may be awarded as recompense but that is not otherwise available in a future suit.

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Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir.2007) (citing Christopher, 536 U.S. at 413-4140)

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(overruled on other grounds, Hust v. Phillips, 555 U.S. 1150, 129 S.Ct. 1036 (2009) (reversed and

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remanded Phillips v. Hust, on qualified immunity grounds without change or discussion of

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elements for an access to court claim)).

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Finally, "[a]lthough prison officials may not obstruct a prisoner's access to the courts by

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unreasonably blocking his access to a law library, prison officials may place reasonable

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limitations on library access in the interest of the secure and orderly operation of the institution."

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Id. (citing Bell v. Wolfish, 441 U.S. 520, 545-48 (1979)). "[P]rison law libraries and legal

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assistance programs are not ends in themselves, but only the means for ensuring a reasonably

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adequate opportunity to present claimed violations of fundamental constitutional rights to the

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courts." Id., at 351 (internal quotes and citations omitted).

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4.

Supervisory Liability

Under section 1983, liability may not be imposed on supervisory personnel for the actions

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of their employees under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677

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(2009). Liability by a supervisor for “knowledge and acquiescence” in subordinates’ wrongful

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discriminatory acts is likewise not cognizable. Id. "In a § 1983 suit or a Bivens action - where

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masters do not answer for the torts of their servants - the term 'supervisory liability' is a

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misnomer." Id. Therefore, when a named defendant holds a supervisory position, the causal link

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between him and the claimed constitutional violation must be specifically alleged. See Fayle v.

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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.

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1978), cert. denied, 442 U.S. 941 (1979).

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To state such a claim, a plaintiff must allege facts that show supervisory defendants either:

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personally participated in the alleged deprivation of constitutional rights; knew of the violations

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and failed to act to prevent them; or promulgated or "implemented a policy so deficient that the

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

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violation.'" Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted);

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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). An unconstitutional policy cannot be proved

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by a single incident Aunless proof of the incident includes proof that it was caused by an existing,

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unconstitutional policy.@ City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427

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(1985). In this instance, a single incident establishes a Apolicy@ only when the decision-maker has

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Afinal authority@ to establish the policy in question. Collins v. City of San Diego, 841 F.2d 337,

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341 (9th Cir. 1988), citing Pembauer v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292 (1986).

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Further, “discrete wrongs B for instance, beatings B by lower level Government actors . . .

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if true and if condoned by [supervisors] could be the basis for some inference of wrongful intent

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on [the supervisor’s] part.” Iqbal, 556 U.S. at 683. To this end, the Ninth Circuit has held that,

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where the applicable constitutional standard is deliberate indifference, a plaintiff may state a

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claim for supervisory liability based on the supervisor’s knowledge of and acquiescence in

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unconstitutional conduct by others. Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011). A fundamental

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premise of this form of liability requires that the actions or inaction by subordinate staff amount

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to a cognizable claim for violation of a plaintiff’s constitutional rights and that the supervisorial

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defendant had knowledge of all such conduct.

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5.

Inmate Appeals

The Due Process Clause protects prisoners from being deprived of liberty without due

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process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). However, “inmates lack a

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separate constitutional entitlement to a specific prison grievance procedure." Ramirez v. Galaza,

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334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no

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entitlement to a specific grievance procedure), citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988). A[A prison] grievance procedure is a procedural right only, it does not confer any

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substantive right upon the inmates.@ Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)

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accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see also Massey v. Helman, 259

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F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on

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prisoner). AHence, it does not give rise to a protected liberty interest requiring the procedural

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protections envisioned by the Fourteenth Amendment.@ Azeez v. DeRobertis, 568 F. Supp. at 10;

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Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).

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Actions in reviewing prisoner=s administrative appeal generally cannot serve as the basis

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for liability under a ' 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who

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knows about a violation of the Constitution, and fails to cure it, has violated the Constitution

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himself is not correct. AOnly persons who cause or participate in the violations are responsible.

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Ruling against a prisoner on an administrative complaint does not cause or contribute to the

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violation.@ Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir.2005) accord George v. Smith, 507

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F.3d 605, 609-10 (7th Cir. 2007); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance

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v. Peters, 97 F.3d 987, 992-93 (7th Cir.1996).

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However, "a plaintiff may state a claim against a supervisor for deliberate indifference

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based upon the supervisor's knowledge of and acquiescence in unconstitutional conduct by his or

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her subordinates." Starr v. Baca, 652 F.3d 1202, 1207 (2011). Such knowledge and

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acquiescence may be shown via the inmate appeals process where the supervisor was involved in

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reviewing Plaintiff's applicable inmate appeal and had the ability, but failed to take corrective

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action so as to allow the violation to continue. However, such involvement in processing or

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reviewing an inmate appeal based on one incident is necessarily insufficient. A defendant may be

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held liable as a supervisor under § 1983 “if there exists either (1) his or her personal involvement

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in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's

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wrongful conduct and the constitutional violation.” Hansen v. Black, 885 F.2d 642, 646 (9th

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Cir.1989). “[A] plaintiff must show the supervisor breached a duty to plaintiff which was the

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proximate cause of the injury. The law clearly allows actions against supervisors under section

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1983 as long as a sufficient causal connection is present and the plaintiff was deprived under

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color of law of a federally secured right.” Redman v. County of San Diego, 942 F.2d 1435, 1447

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(9th Cir. 1991) (internal quotation marks omitted)(abrogated on other grounds by Farmer v.

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Brennan, 511 U.S. 825 (1994).

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“The requisite causal connection can be established . . . by setting in motion a series of

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acts by others,” id. (alteration in original; internal quotation marks omitted), or by “knowingly

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refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably

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should have known would cause others to inflict a constitutional injury,” Dubner v. City & Cnty.

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of San Francisco, 266 F.3d 959, 968 (9th Cir.2001). “A supervisor can be liable in his individual

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capacity for his own culpable action or inaction in the training, supervision, or control of his

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subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a

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reckless or callous indifference to the rights of others.” Watkins v. City of Oakland, 145 F.3d

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1087, 1093 (9th Cir.1998) (internal alteration and quotation marks omitted).

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Thus, if a plaintiff complains of actions by prison personnel in an inmate appeal that state

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a cognizable claim against the prison personnel involved, which is processed or ruled on by their

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supervisor and on which the supervisor fails to take actions to rectify or cease from continuing to

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occur, a cognizable claim may be stated by showing that the supervisor knowingly refused to

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terminate those acts by his subordinates.

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6.

Eleventh Amendment Immunity

Plaintiff may not sustain an action against the California Department of Corrections and

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Rehabilitation (“CDCR”), or WSP. The Eleventh Amendment prohibits federal courts from

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hearing suits brought against an un-consenting state. Brooks v. Sulphur Springs Valley Elec. Co.,

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951 F.2d 1050, 1053 (9th Cir. 1991); see also Seminole Tribe of Fla. v. Florida, 116 S.Ct. 1114,

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1122 (1996); Puerto Rico Aqueduct Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144

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(1993); Austin v. State Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir. 1991). The Eleventh

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Amendment bars suits against state agencies as well as those where the state itself is named as a

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defendant. See Natural Resources Defense Council v. California Dep=t of Tranp., 96 F.3d 420,

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421 (9th Cir. 1996); Brooks v. Sulphur Springs Valley Elec. Co., 951 F.2d 1050, 1053 (9th Cir.

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1991); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (concluding that Nevada Department

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of Prisons was a state agency entitled to Eleventh Amendment immunity); Mitchell v. Los

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Angeles Community College Dist., 861 F.2d 198, 201 (9th Cir. 1989). AThough its language

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might suggest otherwise, the Eleventh Amendment has long been construed to extend to suits

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brought against a state by its own citizens, as well as by citizens of other states.@ Brooks, 951

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F.2d at 1053 (citations omitted). AThe Eleventh Amendment=s jurisdictional bar covers suits

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naming state agencies and departments as defendants, and applies whether the relief is legal or

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equitable in nature.@ Id. (citation omitted). Because the CDCR is a state agency and WSP is a

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part of CDCR, they are immune from suit under the Eleventh Amendment and DISMISSED with

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prejudice.

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7.

State Law Claims

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

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

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

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Compensation and Government Claims Board (“VCGCB” or “Board”), and the Board acted on

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the claim, or the time for doing so expired. “The Tort Claims Act requires that any civil

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complaint for money or damages first be presented to and rejected by the pertinent public entity.”

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Munoz v. California, 33 Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860 (1995). The purpose of this

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requirement is “to provide the public entity sufficient information to enable it to adequately

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investigate claims and to settle them, if appropriate, without the expense of litigation.” City of

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San Jose v. Superior Court, 12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d 701 (1974)

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(citations omitted). Compliance with this “claim presentation requirement” constitutes an

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

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Court (Bodde), 32 Cal.4th 1234, 1244, 13 Cal.Rptr.3d 534, 90 P.3d 116 (2004). Thus, in the state

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courts, “failure to allege facts demonstrating or excusing compliance with the claim presentation

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requirement subjects a claim against a public entity to a demurrer for failure to state a cause of

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action.” Id. at 1239, 13 Cal.Rptr.3d 534, 90 P.3d 116 (fn. omitted).

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Federal courts likewise must require compliance with the CTCA for pendant state law

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claims that seek damages against state public employees or entities. Willis v. Reddin, 418 F.2d

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702, 704 (9th Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477

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(9th Cir.1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983,

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may proceed only if the claims were first presented to the state in compliance with the claim

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presentation requirement. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627

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(9th Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008).

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Plaintiff fails to state any allegations which show he complied with the CTCA upon which
to be allowed to pursue claims for violations of California law in this action.
8.

Injunctive Relief

Plaintiff seeks injunctive relief by way of referral to the District Attorney for violations of
the California Penal Code by WSP employees.
Federal courts are courts of limited jurisdiction and in considering a request for

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preliminary injunctive relief, the Court is bound by the requirement that as a preliminary matter, it

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have before it an actual case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103

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S.Ct. 1660, 1665 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church

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and State, Inc., 454 U.S. 464, 471 (1982). If the Court does not have an actual case or

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controversy before it, it has no power to hear the matter in question. Id. Requests for prospective

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relief are further limited by 18 U.S.C. ' 3626(a)(1)(A) of the Prison Litigation Reform Act, which

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requires that the Court find the Arelief [sought] is narrowly drawn, extends no further than

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necessary to correct the violation of the Federal right, and is the least intrusive means necessary to

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correct the violation of the Federal right.@

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Further, the pendency of this action does not give the Court jurisdiction over prison

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officials in general or over the conditions of Plaintiff=s confinement. Summers v. Earth Island

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Institute, 555 U.S. 488, 492-93 (2009); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir.

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2010). The Court=s jurisdiction is limited to the parties in this action and to the cognizable legal

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claims upon which this action is proceeding. Summers, 555 U.S. at 492-93; Mayfield, 599 F.3d at

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969.

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Plaintiff does not seek the temporary restraining order and/or preliminary injunction

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against any of the Defendants in this action. AA federal court may issue an injunction [only] if it

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has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not

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attempt to determine the rights of persons not before the court.@ Zepeda v. United States

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Immigration Service, 753 F.2d 719, 727 (9th Cir. 1985) (emphasis added). Thus, Plaintiff=s

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motion must be denied for lack of jurisdiction over “the District Attorney” to whom Plaintiff

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seeks referral of his claims.

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Further, Plaintiff must establish that he has standing to seek preliminary injunctive relief

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and “that he is under threat of suffering an ‘injury in fact’ that is concrete and particularized; the

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threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to

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challenged conduct of the defendant; and it must be likely that a favorable judicial decision will

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prevent or redress the injury.” Summers, 555 U.S. at 493 (citation and quotation marks omitted);

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Mayfield, 599 F.3d at 969. The claims which Plaintiff alleges in this action arise from events

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which occurred at WSP. Plaintiff is no longer in custody. Plaintiff thus lacks standing to seek

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relief directed at remedying his conditions of confinement at WSP and any such requests were

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rendered moot when he was released from custody. See Dilley v. Gunn, 64 F.3d 1365, 1368 (9th

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Cir. 1995); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991).

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ORDER

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For the reasons set forth above, Plaintiff's Complaint is dismissed with leave to file a first

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amended complaint within twenty-one (21) days. Any first amended complaint shall not exceed

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twenty-five (25) pages in length, exclusive of exhibits. If Plaintiff needs an extension of time to

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

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thirty (30) days from the date of service of this order.

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Plaintiff must demonstrate in any first amended complaint how the conditions complained

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of have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227

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(9th Cir. 1980). The first amended complaint must allege in specific terms how each named

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defendant is involved. There can be no liability under section 1983 unless there is some

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affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo

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v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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

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plain statement must “give the defendant fair notice of what the . . . claim is and the grounds upon

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

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

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

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(2007) (citations omitted).
Plaintiff is further reminded that an amended complaint supercedes the original, Lacey v.

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

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

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pleading," Local Rule 220.

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

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in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff may not change

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the nature of this suit by adding new, unrelated claims in his first amended complaint. George v.

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

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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

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2.

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

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3.

Within twenty-one (21) days from the date of service of this order, Plaintiff must

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file a first amended complaint curing the deficiencies identified by the Court in

26

this order or a notice of voluntary dismissal; and

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///

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4.

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

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IT IS SO ORDERED.
Dated:

January 27, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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