Applegate v. Said

Filing 8

ORDER to SHOW CAUSE, signed by Magistrate Judge Michael J. Seng on 12/23/16. Show Cause Response Due Within Fourteen Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRIAN APPLEGATE,

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Plaintiff,

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v.

CASE No. 1:16-cv-0958-MJS (PC)
ORDER TO SHOW CAUSE
FOURTEEN-DAY DEADLINE

KHALEL EL SAID,

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Defendant.

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Plaintiff is a state prisoner proceeding pro se in a civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff has consented to the jurisdiction of a magistrate judge. (ECF No.

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6.) Plaintiff’s July 5, 2016, complaint is now before the Court for screening.

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I.

Screening Requirement

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The in forma pauperis statute provides, “Notwithstanding any filing fee, or any

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

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

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

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II.

Pleading Standard

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Section 1983 “provides a cause of action for the deprivation of any rights,

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privileges, or immunities secured by the Constitution and laws of the United States.”

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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).

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Section 1983 is not itself a source of substantive rights, but merely provides a method for

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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94

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(1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated and

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(2) that the alleged violation was committed by a person acting under the color of state

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law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d

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1243, 1245 (9th Cir. 1987).

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

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

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

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

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

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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief

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

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

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

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III.

Plaintiff’s Allegations

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At all times relevant to this action, Plaintiff was an inmate housed at California

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Correctional Institution in Tehachapi, California. He brings this action against a single

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defendant, Khalel El Said, who is named in his individual capacity only.

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Plaintiff’s claims can be fairly summarized as follows:

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On December 2, 2015, Plaintiff was issued an ADA vest by custody supervisors in

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response to his request for certain ADA accommodations.
On December 15, 2015, Plaintiff was interviewed by Defendant following his filing

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of an ADA Reasonable Accommodation Request (“the ADA Request”). Plaintiff appeared

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at the hearing wearing the ADA vest. When Said saw the vest, he directed Plaintiff to

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remove it, saying “Now get the fuck out of here before I have my cops fuck you up and

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give you a real reason to see a doctor.”

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Plaintiff claims this conduct prevented him from receiving care by Said, the harms

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of which are presented in a separate lawsuit. In this action, Plaintiff claims that the

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removal of the vest denied him the protections afforded by it, in violation of California

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Civil Code §51.7 and § 52.1. Plaintiff also claims that Said’s conduct was in retaliation for

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Plaintiff’s filing of the ADA Request as well as numerous grievances previously filed

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against Defendant.

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Plaintiff seeks damages.
IV.

Analysis

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Plaintiff’s sole federal claim in this action is a First Amendment retaliation claim

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against Defendant. As noted supra, he acknowledges the existence of another case

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related to the December 15, 2015, incident, but does not identify it. He states only that

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the claims in the other case are limited to medical care claims and that they could not be

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brought in a single action because they were unexhausted at the time this case was

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filed. Plaintiff is not opposed to relating this case to the other case.

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The Court has identified two other cases filed against Defendant Khalel El Said

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concerning the December 15, 2015, incident: Applegate v. Said, 1:16-cv-0289-JLT (filed

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March 2, 2016 (“the earlier-filed case”)), and Applegate v. CCI, 1:16-cv-1343-MJS (filed

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September 12, 2016 (“the later-filed case”)). In the later-filed case, Plaintiff’s claim

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against Defendant Said appears to be limited to the provision of medical care. However,

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the operative pleading in the earlier-filed case specifically asserts a First Amendment

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retaliation claim against Defendant based on the same conduct at issue here. See

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Applegate v. Said, 1:16-cv-0289-JLT, ECF No. 14 at 12-17. It appears therefore that this

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action is subject to dismissal as duplicative of the earlier case.

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V.

Conclusion

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Based on the foregoing, it is HEREBY ORDERED that Plaintiff shall show cause

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within fourteen days why this action should not be dismissed as duplicative of Applegate

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v. Said, 1:16-cv-0289-JLT. Plaintiff’s response should be no longer than five pages.

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IT IS SO ORDERED.
Dated:

December 23, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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