Gaines v. Virk et al

Filing 9

ORDER DISMISSING 1 Complaint WITH LEAVE TO AMEND; Amended Complaint due within 21 Days signed by Magistrate Judge Jennifer L. Thurston on 6/20/2017. (Sant Agata, S) (Additional attachment(s) added on 6/20/2017: # 1 Amended Complaint Form) (Sant Agata, S).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARY LEE GAINES, 12 13 Plaintiff, Case No. 1:16-cv-01689-AWI-JLT (PC) ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND v. (Doc. 1) 14 VIRK, et al., 21-DAY DEADLINE 15 Defendants. 16 17 In this action, Plaintiff itemizes numerous interactions with medical and custody staff over 18 two years. Because the incidents raised in the complaint appear to be unrelated, the Complaint 19 violates Rules 18 and 20 of the Federal Rules of Civil Procedure and is DISMISSED with leave 20 to amend. 21 A. 22 The Court is required to screen complaints brought by prisoners seeking relief against a Screening Requirement 23 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 24 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 25 frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary 26 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. 27 § 1915(e)(2)(B)(i)-(iii). If an action is dismissed on one of these three bases, a strike is imposed 28 per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed 1 1 as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has 2 not alleged imminent danger of serious physical injury does not qualify to proceed in forma 3 pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015). 4 B. 5 Plaintiff complains of 20 apparently unrelated events that occurred over two years -- from 6 March 20, 2014 to March 16, 2016. Plaintiff names 28 individual defendants and Does 1-50 and 7 seeks monetary damages and injunctive relief. Plaintiff contends that her civil rights have been 8 violated and identifies six claims: (1) cruel and unusual punishment; (2) deliberate indifference 9 to her medical needs; (3) unsafe prison conditions; (4) retaliation; (5) medical negligence; and (6) The Complaint 10 professional negligence. The Court declines to expend its limited resources evaluating all of 11 Plaintiff’s allegations and asserted claims since it is clear that pursuing them all in one action 12 violates Rules 18 and 20. Thus, Plaintiff is given the pleading requirements, the legal standards 13 for the claims Plaintiff lists, and leave to file a first amended complaint. 14 C. Pleading Requirements 15 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 “[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 “sufficient 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 While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft, 1 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,” 5 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights 6 complaint may not supply essential elements of the claim that were not initially pled,” Bruns v. 7 Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 8 673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, 9 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 10 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, 11 and “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. If she chooses to file a first amended complaint, Plaintiff should make it as concise as 13 14 possible. She should simply state which of her constitutional rights she feels were violated by 15 each Defendant and its factual basis. Where the allegations against two or more Defendants are 16 factually intertwined, Plaintiff need not repeat the factual allegations separately against each 17 Defendant. Rather, Plaintiff should present her factual allegations and identify the Defendants 18 she feels are thereby implicated. Plaintiff need not cite legal authority for her claims in a first 19 amended complaint as her factual allegations are accepted as true. The amended complaint 20 should be clearly legible (see Local Rule 130(b)), and double-spaced pursuant to Local Rule 21 130(c). 22 23 2. Exhibits The Court is not a repository for the parties’ evidence. Originals, or copies of evidence 24 (i.e., prison or medical records, witness affidavits, etc.) need not be submitted until the course of 25 litigation brings the evidence into question (for example, on a motion for summary judgment, at 26 trial, or when requested by the Court). If Plaintiff attaches exhibits to his amended complaint, 27 each exhibit must be specifically referenced. Fed. R. Civ. Pro. 10(c). For example, Plaintiff must 28 state “see Exhibit A” or something similar in order to direct the Court to the specific exhibit 3 1 Plaintiff is referencing. Further, if the exhibit consists of more than one page, Plaintiff must 2 reference the specific page of the exhibit (i.e. “See Exhibit A, page 3”). 3 At this point, the submission of evidence is premature as Plaintiff is only required to state 4 a prima facie claim for relief. Plaintiff is reminded that, for screening purposes, the Court must 5 assume that Plaintiff’s factual allegations are true. It is unnecessary for a plaintiff to submit 6 exhibits in support of the allegations in a complaint. Thus, if Plaintiff chooses to file a first 7 amended complaint, she would do well to simply state the facts upon which she alleges a 8 Defendant has violated her constitutional rights and refrain from submitting exhibits. 9 3. Linkage Requirement 10 Section 1983 of Title 42 of the United States Code requires that there be an actual 11 connection or link between the actions of the defendants and the deprivation alleged to have been 12 suffered by Plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. 13 Goode, 423 U.S. 362 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 14 deprivation of a constitutional right, within the meaning of section 1983, if she does an 15 affirmative act, participates in another’s affirmative acts or omits to perform an act which she is 16 legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 17 588 F.2d 740, 743 (9th Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff 18 must link each named defendant with some affirmative act or omission that demonstrates a 19 violation of Plaintiff=s federal rights. 20 Plaintiff must clearly identify which Defendant(s) she feels are responsible for each 21 violation of her constitutional rights and their factual basis as her Complaint must put each 22 Defendant on notice of Plaintiff’s claims against him or her. See Austin v. Terhune, 367 F.3d 23 1167, 1171 (9th Cir. 2004). 24 25 4. Federal Rule of Civil Procedure 18(a) & 20(a)(2) Federal Rule of Civil Procedure 18(a) allows a party asserting a claim for relief as an 26 original claim, counterclaim, cross-claim, or third-party claim to join, either as independent or as 27 alternate claims, numerous claims against an opposing party. However, Plaintiff may not bring 28 unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 20(a)(2); 4 1 Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th 2 Cir. 2007). Plaintiff may bring a claim against multiple defendants so long as (1) the claims arise 3 out of the same transaction or occurrence, or series of transactions and occurrences, and (2) there 4 are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 130 F.3d 5 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America, 623 F.3d 6 1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined under Rule 20(a) will the 7 Court review the additional claims to determine if they may be joined under Rule 18(a), which 8 permits the joinder of multiple claims against the same party. 9 The Court must be able to discern a relationship between Plaintiff’s claims or there must 10 be a similarity of parties. The fact that all of Plaintiff’s allegations are based on the same type of 11 constitutional violation (i.e. retaliation by different actors on different dates, under different 12 factual events, or medical claims against different actors on different dates) does not necessarily 13 make claims related for purposes of Rule 18(a). All claims that do not comply with Rules 18(a) 14 and 20(a)(2) are subject to dismissal. Plaintiff is cautioned that if she fails to elect which 15 category of claims to pursue and his amended complaint sets forth improperly joined claims, the 16 Court will determine which claims should proceed and which claims will be dismissed. Visendi 17 v. Bank of America, N.A., 733 F3d 863, 870-71 (9th Cir. 2013). Whether any claims will be 18 subject to severance by future order will depend on the viability of claims pled in the amended 19 complaint. 20 D. 21 22 23 Claims for Relief 1. Eighth Amendment a. Excessive Force The Eighth Amendment prohibits those who operate our prisons from using “excessive 24 physical force against inmates.” Farmer v. Brennan, 511 U.S. 825 (1994); Hoptowit v. Ray, 682 25 F.2d 1237, 1246, 1250 (9th Cir.1982) (prison officials have “a duty to take reasonable steps to 26 protect inmates from physical abuse”); see also Vaughan v. Ricketts, 859 F.2d 736, 741 (9th 27 Cir.1988), cert. denied, 490 U.S. 1012 (1989) (“prison administrators’ indifference to brutal 28 behavior by guards toward inmates [is] sufficient to state an Eighth Amendment claim”). As 5 1 courts have succinctly observed, “[p]ersons are sent to prison as punishment, not for 2 punishment.” Gordon v. Faber, 800 F.Supp. 797, 800 (N.D. Iowa 1992) (citation omitted), aff=d, 3 973 F.2d 686 (8th Cir.1992). “Being violently assaulted in prison is simply not ‘part of the 4 penalty that criminal offenders pay for their offenses against society.’” Farmer, 511 U.S. at 834, 5 (quoting Rhodes, 452 U.S. at 347). 6 When a prison official stands accused of using excessive physical force in violation of the 7 cruel and unusual punishment clause of the Eighth Amendment, the question turns on “whether 8 force was applied in a good-faith effort to maintain or restore discipline, or maliciously and 9 sadistically for the purpose of causing harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992) (citing 10 Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). In determining whether the use of force was 11 wanton and unnecessary, it is proper to consider factors such as the need for application of force, 12 the relationship between the need and the amount of force used, the threat reasonably perceived 13 by the responsible officials, and any efforts made to temper the severity of the forceful response. 14 Hudson, 503 U.S. at 7. The extent of a prisoner’s injury is also a factor that may suggest whether 15 the use of force could plausibly have been thought necessary in a particular situation. Id. 16 Although the absence of serious injury is relevant to the Eighth Amendment inquiry, it is not 17 determinative. Id. That is, use of excessive physical force against a prisoner may constitute cruel 18 and unusual punishment even though the prisoner does not suffer serious injury. Id. at 9. 19 Although the Eighth Amendment protects against cruel and unusual punishment, this does 20 not mean that federal courts can or should interfere whenever prisoners are inconvenienced or 21 suffer de minimis injuries. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (8th Amendment 22 23 24 25 26 27 28 excludes from constitutional recognition de minimis uses of force). The malicious and sadistic use of force to cause harm always violates contemporary standards of decency, regardless of whether significant injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir.2002) (Eighth Amendment excessive force standard examines de minimis uses of force, not de minimis injuries)). “Injury and force, . . . , are only imperfectly correlated, and it is the latter that ultimately counts. An inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious 6 1 injury.” Wilkins v. Gaddy, -- S.Ct. --, 2010 WL 596153, *3 (Feb. 22, 2010). However, not 2 “every malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson, 503 3 U.S. at 9. “The Eighth Amendment’s prohibition of cruel and unusual punishments necessarily 4 excludes from constitutional recognition de minimis uses of physical force, provided that the use 5 of force is not of a sort ‘repugnant to the conscience of mankind.’” Id. at 9-10 (internal 6 quotations marks and citations omitted). 7 b. Conditions of Confinement 8 The Eighth Amendment also protects prisoners from inhumane methods of punishment 9 and from inhumane conditions of confinement. Farmer, 511 U.S. 825; Morgan v. Morgensen, 10 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison officials 11 have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, 12 medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quotation 13 marks and citations omitted). To establish a violation of the Eighth Amendment, the prisoner 14 must “show that the officials acted with deliberate indifference. . . .” Labatad v. Corrections 15 Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v. County of Washoe, 290 16 F.3d 1175, 1187 (9th Cir. 2002). 17 The deliberate indifference standard involves both an objective and a subjective prong. 18 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer at 834. 19 Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate 20 health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). 21 22 23 24 25 26 27 28 Objectively, extreme deprivations are required to make out a conditions of confinement claim and only those deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9 (1992). Although the Constitution “ ‘does not mandate comfortable prisons,’ ” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes, 452 U.S. at 349), “inmates are entitled to reasonably adequate sanitation, personal hygiene, and laundry privileges, particularly over a lengthy course of time,” Howard, 887 F.2d at 137. Some conditions of confinement may establish an Eighth Amendment violation “in combination” when each would not do so alone, but 7 1 only when they have a mutually enforcing effect that produces the deprivation of a single, 2 identifiable human need such as food, warmth, or exercise -- for example, a low cell temperature 3 at night combined with a failure to issue blankets. Wilson, 501 U.S. at 304-05(comparing Spain 4 v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (outdoor exercise required when prisoners 5 otherwise confined in small cells almost 24 hours per day), with Clay v. Miller, 626 F.2d 345, 347 6 (4th Cir. 1980) (outdoor exercise not required when prisoners otherwise had access to dayroom 7 18 hours per day)). To say that some prison conditions may interact in this fashion is far from 8 saying that all prison conditions are a seamless web for Eighth Amendment purposes. Id. 9 Amorphous “overall conditions” cannot rise to the level of cruel and unusual punishment when 10 no specific deprivation of a single human need exists. Id. Further, temporarily unconstitutional 11 conditions of confinement do not necessarily rise to the level of constitutional violations. See 12 Anderson, 45 F.3d 1310, ref. Hoptowit, 682 F.2d at 1258 (abrogated on other grounds by Sandin, 13 515 U.S. 472 (in evaluating challenges to conditions of confinement, length of time the prisoner 14 must go without basic human needs may be considered)). Thus, Plaintiff’s factual allegations as 15 to the conditions he was subjected to during his confinement on management cell/ASU must be 16 evaluated to determine whether they demonstrate a deprivation of a basic human need 17 individually or in combination. 18 Subjectively, if an objective deprivation is shown, a plaintiff must show that prison 19 officials acted with a sufficiently culpable state of mind, that of “deliberate indifference.” Wilson, 20 501 U.S. at 303; Labatad, 714 F.3d at 1160; Johnson, 217 F.3d at 733. “Deliberate indifference 21 is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004). “Under this 22 23 24 25 26 27 28 standard, the prison official must not only ‘be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). To prove knowledge of the risk, however, the prisoner may rely on circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to establish 8 1 knowledge. Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). 2 Verbal harassment or abuse alone is not sufficient to state a claim under section 1983. 3 Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Even threats do not rise to the level 4 of a constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). c. 5 Medical Needs 6 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 7 prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 8 is serious if failure to treat it will result in ‘“significant injury or the unnecessary and wanton 9 infliction of pain.”’” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner, 10 439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 11 Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 12 Cir.1997) (en banc)) 13 To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 14 first “show a serious medical need by demonstrating that failure to treat a prisoner’s condition 15 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 16 the plaintiff must show the defendants’ response to the need was deliberately indifferent.” 17 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096 18 (quotation marks omitted)). 19 20 21 22 23 24 25 26 27 28 As to the first prong, indications of a serious medical need “include the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at 1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). As to the second prong, deliberate indifference is “a state of mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or safety.’ ” Farmer, 511 U.S. at 835 (quoting Whitley, 475 U.S. at 319). Deliberate indifference is shown where a prison official “knows that inmates face a substantial risk of serious harm and 9 1 disregards that risk by failing to take reasonable measures to abate it.” Id., at 847. In medical 2 cases, this requires showing: (a) a purposeful act or failure to respond to a prisoner’s pain or 3 possible medical need and (b) harm caused by the indifference. Wilhelm, 680 F.3d at 1122 4 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was substantial; however, 5 such would provide additional support for the inmate’s claim that the defendant was deliberately 6 indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974 F.2d at 1060. 7 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 8 (9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from 9 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 10 ‘must also draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison 11 official should have been aware of the risk, but was not, then the official has not violated the 12 Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, 13 Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). 14 15 2. Retaliation Prisoners have a First Amendment right to file grievances against prison officials and to 16 be free from retaliation for doing so. Waitson v. Carter, 668 F.3d 1108, 1114-1115 (9th Cir. 17 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.2009). A retaliation claim has five 18 elements. Id. at 1114. 19 First, the plaintiff must allege that the retaliated-against conduct is protected. Id. The 20 filing of an inmate grievance is protected conduct, Rhodes v. Robinson, 408 F.3d 559, 568 (9th 21 Cir. 2005), as are the rights to speech or to petition the government, Rizzo v. Dawson, 778 F.2d 22 23 24 25 26 27 28 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Second, the plaintiff must show the defendant took adverse action against the plaintiff. Rhodes, at 567. Third, the plaintiff must allege a causal connection between the adverse action and the protected conduct. Waitson, 668 F.3d at 1114. Fourth, the plaintiff must allege that the “official’s acts would chill or silence a person of ordinary firmness from future First Amendment activities.” Robinson, 408 F.3d at 568 (internal quotation marks and emphasis omitted). “[A] plaintiff who fails to allege a chilling 10 1 effect may still state a claim if he alleges he suffered some other harm,” Brodheim, 584 F.3d at 2 1269, that is “more than minimal,” Robinson, 408 F.3d at 568 n.11. Fifth, the plaintiff must 3 allege “that the prison authorities’ retaliatory action did not advance legitimate goals of the 4 correctional institution. . . .” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985). 5 It bears repeating that while Plaintiff need only allege facts sufficient to support a 6 plausible claim for relief, the mere possibility of misconduct is not sufficient, Iqbal, 556 U.S. at 7 678-79, and the Court is “not required to indulge unwarranted inferences,” Doe I v. Wal-Mart 8 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 9 Thus, Plaintiff’s mere allegations that she engaged in protected activity, without knowledge 10 resulting in animus by a Defendant, is insufficient to show that Plaintiff=s protected activity was 11 the motivating factor behind a Defendant’s actions. 3. 12 State Law Claims a. 13 Government Claims Act Plaintiff lists negligence and professional malpractice under California law as two of the 14 15 claims she is asserting against various of the Defendants. Under the California Government 16 Claims Act (“CGCA”),1 set forth in California Government Code sections 810 et seq., a plaintiff 17 may not bring a suit for monetary damages against a public employee or entity unless the plaintiff 18 first presented the claim to the California Victim Compensation and Government Claims Board 19 (“VCGCB” or “Board”), and the Board acted on the claim, or the time for doing so expired. “The 20 Tort Claims Act requires that any civil complaint for money or damages first be presented to and 21 rejected by the pertinent public entity.” Munoz v. California, 33 Cal.App.4th 1767, 1776, 39 22 Cal.Rptr.2d 860 (1995). The purpose of this requirement is “to provide the public entity sufficient information to 23 24 25 26 27 28 enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation,” City of San Jose v. Superior Court, 12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d 701 (1974) (citations omitted), and “to confine potential governmental liability to rigidly 1 The Government Claims Act was formerly known as the California Tort Claims Act. City of Stockton v. Superior Court, 42 Cal.4th 730, 741-42 (Cal. 2007) (adopting the practice of using Government Claims Act rather than California Tort Claims Act). 11 1 delineated circumstances: immunity is waived only if the various requirements of the Act are 2 satisfied,” Nuveen Mun. High Income Opportunity Fund v. City of Alameda, Cal., 730 F.3d 1111, 3 1125 (9th Cir. 2013). Compliance with this “claim presentation requirement” constitutes an 4 element of a cause of action for damages against a public entity or official. State v. Superior 5 Court (Bodde), 32 Cal.4th 1234, 1244, 13 Cal.Rptr.3d 534, 90 P.3d 116 (2004). Thus, in the state 6 courts, “failure to allege facts demonstrating or excusing compliance with the claim presentation 7 requirement subjects a claim against a public entity to a demurrer for failure to state a cause of 8 action.” Id. at 1239, 13 Cal.Rptr.3d 534, 90 P.3d 116 (fn.omitted). 9 Federal courts likewise must require compliance with the CGCA for pendant state law 10 claims that seek damages against state public employees or entities. Willis v. Reddin, 418 F.2d 11 702, 704 (9th Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 12 (9th Cir.1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983, 13 may proceed only if the claims were first presented to the state in compliance with the claim 14 presentation requirement. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 15 (9th Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008). 16 17 18 19 Plaintiff fails to state any allegations which show she complied with the CGCA upon which to be allowed to pursue claims for violation of California law in this action. b. Supplemental Jurisdiction Pursuant to 28 U.S.C. ' 1367(a), in any civil action in which the district court has original 20 jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in the 21 action within such original jurisdiction that they form part of the same case or controversy under 22 23 24 25 26 27 28 Article III,” except as provided in subsections (b) and (c). “[O]nce judicial power exists under ' 1367(a), retention of supplemental jurisdiction over state law claims under 1367(c) is discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). “The district court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. ' 1367(c)(3); Parra v. PacifiCare of Ariz., Inc., 715 F.3d 1146, 1156 (9th Cir. 2013); Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001); see also Watison v. 12 1 Carter, 668 F.3d 1108, 1117-18 (9th Cir. 2012) (even in the presence of cognizable federal 2 claim, district court has discretion to decline supplemental jurisdiction over novel or complex 3 issue of state law of whether criminal statutes give rise to civil liability). The Supreme Court has 4 cautioned that “if the federal claims are dismissed before trial, . . . the state claims should be 5 dismissed as well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). 6 7 8 9 If Plaintiff has complied with the CTCA, jurisdiction over her claims under California law will only be allowed to proceed in this Court as long as she has federal claims pending. 4. Supervisory Liability It appears that Plaintiff may have named a number of defendants, including California 10 Governor Jerry Brown and CDCR Secretary Scott Kernan, not because they were involved in any 11 specific incident, but merely because of their supervisory positions. Supervisory personnel are 12 generally not liable under section 1983 for the actions of their employees under a theory of 13 respondeat superior and, therefore, when a named defendant holds a supervisory position, the 14 causal link between him and the claimed constitutional violation must be specifically alleged. See 15 Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th 16 Cir. 1978), cert. denied, 442 U.S. 941 (1979). To state a claim for relief under section 1983 based 17 on a theory of supervisory liability, Plaintiff must allege some facts that would support a claim 18 that supervisory defendants either: personally participated in the alleged deprivation of 19 constitutional rights; knew of the violations and failed to act to prevent them; or promulgated or 20 “implemented a policy so deficient that the policy ‘itself is a repudiation of constitutional rights’ 21 and is ‘the moving force of the constitutional violation.’” Hansen v. Black, 885 F.2d 642, 646 22 23 24 25 26 27 28 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Under section 1983, liability may not be imposed on supervisory personnel for the actions of their employees under a theory of respondeat superior. Iqbal, 556 U.S. at 677. “In a § 1983 suit or a Bivens action - where masters do not answer for the torts of their servants - the term ‘supervisory liability’ is a misnomer.” Id. Knowledge and acquiescence of a subordinate’s misconduct is insufficient to establish liability; each government official is only liable for his or her own misconduct. Id. 13 1 “‘[B]are assertions . . . amount[ing] to nothing more than a “formulaic recitation of the 2 elements” of a constitutional discrimination claim,= for the purposes of ruling on a motion to 3 dismiss [and thus also for screening purposes], are not entitled to an assumption of truth.” Moss, 4 572 F.3d at 969 (quoting Iqbal, 556 U.S. at 1951 (quoting Twombly, 550 U.S. at 555)). “Such 5 allegations are not to be discounted because they are ‘unrealistic or nonsensical,’ but rather 6 because they do nothing more than state a legal conclusion B even if that conclusion is cast in the 7 form of a factual allegation.” Id. 8 9 10 11 12 Thus, any allegation that supervisory personnel, such as the Warden, are somehow liable solely based on the acts of those under his or her supervision does not state a cognizable claim. 5. Injunctive Relief In addition to monetary damages, Plaintiff seeks injunctive relief to require various prison personnel to refrain from offending acts, and to require others to perform desired acts. 13 As an initial matter and as stated in the recently issued screening order, Plaintiff has not 14 stated a cognizable claim upon which relief may be granted, such that there is no actual case or 15 controversy before the Court at this time, and Court lacks the jurisdiction to issue the order sought 16 by Plaintiff. Summers v. Earth Island Institute, 129 S.Ct. 1142, 1149 (2009); Stormans, Inc. v. 17 Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009); 18 U.S.C. ' 3626(a)(1)(A). If the Court does not 18 have an actual case or controversy before it, it has no power to hear the matter in question. Id. 19 Further, requests for prospective relief are limited by 18 U.S.C. ' 3626 (a)(1)(A) of the 20 Prison Litigation Reform Act, which requires that the Court ensure the relief “is narrowly drawn, 21 extends no further than necessary to correct the violation of the Federal Right, and is the least 22 23 24 25 26 27 28 intrusive means necessary to correct the violation of the Federal Right.” Relief cannot be narrowly drawn here since Plaintiff seeks relief that is unrelated to the violations of rights asserted in this action. Plaintiff is not precluded from attempting to state cognizable claims in a new action if he believes his civil rights are being violated beyond his pleadings in this action. The issue is not that Plaintiff=s allegations are not serious, or that Plaintiff is not entitled to relief if sought in the proper forum. The seriousness of Plaintiff’s accusations cannot and do not overcome what is a 14 1 jurisdictional bar. Steel Co., 523 U.S. at 103-04 (“[The] triad of injury in fact, causation, and 2 redressability constitutes the core of Article III’s case-or-controversy requirement, and the party 3 invoking federal jurisdiction bears the burden of establishing its existence.”) This action is 4 simply not the proper vehicle for conveyance of the relief Plaintiff seeks. 5 II. 6 CONCLUSION For the reasons set forth above, Plaintiff’s Complaint is dismissed with leave to file a first 7 amended complaint within 21 days. If Plaintiff no longer desires to pursue this action, she may 8 file a notice of voluntary dismissal. If Plaintiff needs an extension of time to comply with this 9 order, Plaintiff shall file a motion seeking an extension of time no later than 21 days from the 10 date of service of this order. 11 Plaintiff must demonstrate in any first amended complaint how the conditions complained 12 of have resulted in a deprivation of Plaintiff's constitutional rights. See Ellis v. Cassidy, 625 F.2d 13 227 (9th Cir. 1980). The first amended complaint must allege in specific terms how each named 14 defendant is involved. There can be no liability under section 1983 unless there is some 15 affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo 16 v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. 17 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 18 Plaintiff’s first amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and 19 plain statement must “give the defendant fair notice of what the . . . claim is and the grounds upon 20 which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. 21 Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the “[f]actual allegations must be 22 23 24 25 26 27 28 [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. 127, 555 (2007) (citations omitted). Plaintiff is further advised that an amended complaint supercedes the original, Lacey v. Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 2012) (en banc), and must be “complete in itself without reference to the prior or superceded pleading,” Local Rule 220. The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified 15 1 by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff 2 may not change the nature of this suit by adding new, unrelated claims in his first amended 3 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 4 Based on the foregoing, the Court ORDERS: 5 1. Plaintiff’s Complaint is dismissed, with leave to amend; 6 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; and 7 3. Within 21 days from the date of service of this order, Plaintiff must file a first 8 amended complaint curing the deficiencies identified by the Court in this order or 9 a notice of voluntary dismissal. 10 If Plaintiff fails to comply with this order, this action will be dismissed for failure to obey a 11 court order and for failure to state a claim. 12 IT IS SO ORDERED. 13 14 Dated: June 20, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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