Kinder v. Cortez et al

Filing 12

ORDER STRIKING Unsigned Complaint, signed by Magistrate Judge Jennifer L. Thurston on 5/8/17. 30-Day Deadline. (Attachments: # 1 1983 Prisoner Complaint Form)(Marrujo, C)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

BOBBY LEE KINDER, JR.,

12

Plaintiff,

13

ORDER STRIKING UNSIGNED COMPLAINT
(Doc. 1)

v.

14

Case No. 1:16-cv-01764-JLT (PC)

CORTEZ, et al.,
30-DAY DEADLINE

15

Defendants.

16
17

Bobby Lee Kinder, Jr., filed this civil action on November 14, 2016 but failed to sign the

18

complaint. (Doc. 1.) The Court cannot consider unsigned filings and the complaint shall be

19

stricken from the record for that reason. Fed. R. Civ. Pro. 11; L. R. 131. The Court grants

20

Plaintiff thirty days to file a signed complaint. Toward that end, the Court will supply him with

21

the pleading and legal standards which appear to apply to the claims that he is attempting to assert

22

in this action.

23

A. Screening Requirement

24

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

25

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

26

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

27

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

28

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

1

§ 1915(e)(2)(B)(i)-(iii). If an action is dismissed on one of these three basis, a “strike” is imposed

2

per 28 U.S.C. § 1915(g). An inmate who has had three or more prior actions or appeals dismissed

3

as frivolous, malicious, or for failure to state a claim upon which relief may be granted, and has

4

not alleged imminent danger of serious physical injury does not qualify to proceed in forma

5

pauperis. See 28 U.S.C. § 1915(g); Richey v. Dahne, 807 F.3d 1201, 1208 (9th Cir. 2015).

6
7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28
2

1

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

2

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

3

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

4

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

5

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

6

2. Linkage Requirement

7

To state a claim using 42 U.S.C. ' 1983, the complaint must set forth an actual connection

8

or link between the actions of the defendants and the deprivation alleged to have been suffered by

9

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

10

U.S. 362 (1976). The Ninth Circuit has held that A[a] person >subjects= another to the deprivation

11

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

12

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

13

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

14

(9th Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff must link each

15

named defendant with some affirmative act or omission that demonstrates a violation of

16

Plaintiff=s federal rights.

17
18

3. Federal Rules 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

19

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

20

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

21

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

22

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

23

607 (7th Cir. 2007). As an initial matter, Plaintiff may bring a claim against multiple defendants

24

so long as (1) the claim(s) arise out of the same transaction or occurrence, or series of transactions

25

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

26

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

27

of North America, 623 F.3d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly

28
3

1

joined under Rule 20(a) will the Court review the extraneous claims to determine if they may be

2

joined under Rule 18(a), which permits the joinder of multiple claims against the same party.

3

The Court must be able to discern a relationship between Plaintiff’s claims and/or there

4

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

5

type of constitutional violation (i.e. retaliation by different actors on different dates, under

6

different factual events) does not necessarily make claims related for purposes of compliance with

7

Rule 18(a). All claims that do not comply with Rules 18(a) and 20(a)(2) are subject to dismissal.

8

Plaintiff is cautioned that if he fails to make the requisite election regarding which category of

9

claims to pursue and his amended complaint sets forth improperly joined claims, the Court will

10

determine which claims proceed and which will be dismissed. Visendi v. Bank of America, N.A.,

11

733 F3d 863, 870-71 (9th Cir. 2013). Whether any claims will be subject to severance by future

12

order will depend on which claims are pled in the amended complaint and which of those pled are

13

viable.

14
15
16

C. Legal Standards
1. Failure to Protect/Safety
“The treatment a prisoner receives in prison and the conditions under which he is confined

17

are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832,

18

114 S.Ct. 1970 (1994) (citing Helling v. McKinney, 509 U.S. 25, 31 (1993). Prison officials have

19

a duty “to take reasonable measures to guarantee the safety of inmates, which has been

20

interpreted to include a duty to protect prisoners.” Labatad v. Corrections Corp. of America, 714

21

F.3d 1155, 1160 (9th Cir. 2013) (citing Farmer, 511 U.S. at 832-33; Hearns v. Terhune, 413 F.3d

22

1036, 1040 (9th Cir. 2005)).

23

To establish a violation of this duty, the prisoner must “show that the officials acted with

24

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

25

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

26

and subjective components.

27

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

28
4

1

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

2

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

3

349 (1981). Second, subjectively, the prison official must “know of and disregard an excessive

4

risk to inmate health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th

5

Cir. 1995). A prison official must “be aware of facts from which the inference could be drawn

6

that a substantial risk of serious harm exists, and . . . must also draw the inference.” Farmer, 511

7

U.S. at 837. Liability may follow only if a prison official “knows that inmates face a substantial

8

risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”

9

Id. at 847.

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

at 836-37. Mere negligence does not suffice.

18
19

2. Excessive Force
The Eighth Amendment prohibits those who operate our prisons from using Aexcessive

20

physical force against inmates.@ Farmer v. Brennan, 511 U.S. 825 (1994); Hoptowit v. Ray, 682

21

F.2d 1237, 1246, 1250 (9th Cir.1982) (prison officials have Aa duty to take reasonable steps to

22

protect inmates from physical abuse@); see also Vaughan v. Ricketts, 859 F.2d 736, 741 (9th

23

Cir.1988), cert. denied, 490 U.S. 1012 (1989) (Aprison administrators= indifference to brutal

24

behavior by guards toward inmates [is] sufficient to state an Eighth Amendment claim@). As

25

courts have succinctly observed, A[p]ersons are sent to prison as punishment, not for punishment.@

26

Gordon v. Faber, 800 F.Supp. 797, 800 (N.D. Iowa 1992) (citation omitted), aff=d, 973 F.2d 686

27

(8th Cir.1992). ABeing violently assaulted in prison is simply not >part of the penalty that criminal

28
5

1

offenders pay for their offenses against society.=@ Farmer, 511 U.S. at 834, (quoting Rhodes, 452

2

U.S. at 347).

3

When a prison official stands accused of using excessive physical force in violation of the

4

cruel and unusual punishment clause of the Eighth Amendment, the question turns on Awhether

5

force was applied in a good-faith effort to maintain or restore discipline, or maliciously and

6

sadistically for the purpose of causing harm.@ Hudson v. McMillian, 503 U.S. 1, 7 (1992) (citing

7

Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). In determining whether the use of force was

8

wanton and unnecessary, it is proper to consider factors such as the need for application of force,

9

the relationship between the need and the amount of force used, the threat reasonably perceived

10

by the responsible officials, and any efforts made to temper the severity of the forceful response.

11

Hudson, 503 U.S. at 7. The extent of a prisoner=s injury is also a factor that may suggest whether

12

the use of force could plausibly have been thought necessary in a particular situation. Id.

13

Although the absence of serious injury is relevant to the Eighth Amendment inquiry, it is not

14

determinative. Id. That is, use of excessive physical force against a prisoner may constitute cruel

15

and unusual punishment even though the prisoner does not suffer serious injury. Id. at 9.

16

Although the Eighth Amendment protects against cruel and unusual punishment, this does

17

not mean that federal courts can or should interfere whenever prisoners are inconvenienced or

18

suffer de minimis injuries. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (8th Amendment

19

excludes from constitutional recognition de minimis uses of force). The malicious and sadistic

20

use of force to cause harm always violates contemporary standards of decency, regardless of

21

whether significant injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th

22

Cir.2002) (Eighth Amendment excessive force standard examines de minimis uses of force, not de

23

minimis injuries)). AInjury and force . . . are only imperfectly correlated, and it is the latter that

24

ultimately counts. An inmate who is gratuitously beaten by guards does not lose his ability to

25

pursue an excessive force claim merely because he has the good fortune to escape without serious

26

injury.@ Wilkins v. Gaddy, -- S.Ct. --, 2010 WL 596153, *3 (Feb. 22, 2010). However, not Aevery

27

malevolent touch by a prison guard gives rise to a federal cause of action.@ Hudson, 503 U.S. at

28
6

1

9. AThe Eighth Amendment=s prohibition of cruel and unusual punishments necessarily excludes

2

from constitutional recognition de minimis uses of physical force, provided that the use of force is

3

not of a sort >repugnant to the conscience of mankind.=@ Id. at 9-10 (internal quotations marks and

4

citations omitted).

5

A>Prison administrators . . . should be accorded wide-ranging deference in the adoption and

6

execution of policies and practices that in their judgment are needed to preserve internal order and

7

discipline and to maintain institutional security.=@ Hudson, 503 U.S. at 6 (quoting Whitley, 475

8

U.S. at 321-322 (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1970))).

9

3. Conspiracy

10

A claim brought for violation of section 1985(3) requires “four elements: (1) a conspiracy;

11

(2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the

12

equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act

13

in furtherance of this conspiracy; (4) whereby a person is either injured in his person or property

14

or deprived of any right or privilege of a citizen of the United States.” Sever v. Alaska Pulp

15

Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (citation omitted). A claim for violation of section

16

1985(3) requires the existence of a conspiracy and an act in furtherance of the conspiracy.

17

Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005) (citation omitted). A mere allegation of

18

conspiracy is insufficient to state a claim. Id. at 676-77. “A racial, or perhaps otherwise class-

19

based, invidiously discriminatory animus is an indispensable element of a section 1985(3) claim.”

20

Sprewell v. Golden State Warriors, 266 F.3d 979, 989 (9th Cir. 2001) (quotations and citation

21

omitted). Restraint must be exercised in extending section 1985(3) beyond racial prejudice.

22

Butler v. Elle, 281 F.3d 1014, 1028 (9th Cir. 2002). Bare allegations that all defendants

23

conspired to harass and/or retaliate against Plaintiff are conclusory at best and not cognizable.

24

See Iqbal, 556 U.S. at 678.

25
26
27

4. Heck Bar
When a prisoner challenges the legality or duration of his custody, or raises a
constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a

28
7

1

writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874

2

(9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking damages for an

3

allegedly unconstitutional conviction or imprisonment, "a § 1983 plaintiff must prove that the

4

conviction or sentence has been reversed on direct appeal, expunged by executive order, declared

5

invalid by a state tribunal authorized to make such determination, or called into question by a

6

federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck v. Humphrey, 512

7

U.S. 477, 487-88 (1994). "A claim for damages bearing that relationship to a conviction or

8

sentence that has not been so invalidated is not cognizable under § 1983." Id. at 488.

9

5. California Government Claims Act

10

Under California’s Government Claims Act (“CGCA”),1 set forth in California

11

Government Code sections 810 et seq., a plaintiff may not bring a suit for monetary damages

12

against a public employee or entity unless the plaintiff first presented the claim to the California

13

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

14

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

15

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

16

Munoz v. California, 33 Cal.App.4th 1767, 1776 (1995). The purpose of this requirement is “to

17

provide the public entity sufficient information to enable it to adequately investigate claims and to

18

settle them, if appropriate, without the expense of litigation,” City of San Jose v. Superior Court,

19

12 Cal.3d 447, 455 (1974) (citations omitted), and “to confine potential governmental liability to

20

rigidly delineated circumstances: immunity is waived only if the various requirements of the Act

21

are satisfied,” Nuveen Mun. High Income Opportunity Fund v. City of Alameda, Cal., 730 F.3d

22

1111, 1125 (9th Cir. 2013). Compliance with this “claim presentation requirement” constitutes

23

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

24

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

25

demonstrating or excusing compliance with the claim presentation requirement subjects a claim

26
27
28

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).

8

1

against a public entity to a demurrer for failure to state a cause of action.” Id. at 1239

2

(fn.omitted).

3

To be timely, a claim must be presented to the VCGCB “not later than six months after

4

the accrual of the cause of action.” Cal. Govt.Code § 911.2. Thereafter, Aany suit brought against

5

a public entity@ must be commenced no more than six months after the public entity rejects the

6

claim. Cal. Gov. Code, ' 945.6, subd. (a)(1).

7

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

8

seek damages against state employees or entities. Willis v. Reddin, 418 F.2d 702, 704 (9th

9

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

10

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

11

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

12

requirements. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 (9th

13

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

14

6. Mail

15

"[A] prison inmate, enjoys a First Amendment right to send and receive mail." Witherow

16

v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam) citing Thornburgh v. Abbott, 490 U.S. 401,

17

407, 109 S.Ct. 1874, 1878-79 (1989). "However, a prison may adopt regulations which impinge

18

on an inmate's constitutional rights if those regulations are 'reasonably related to legitimate

19

penological interests.'" Id., quoting Turner v. Safley, 482 U.S. 78, 89 (1987). "Legitimate

20

penological interests include 'security, order, and rehabilitation.'" Id., quoting Procunier v.

21

Martinez, 416 U.S. 396, 413 (1974). "When a prison regulation affects outgoing mail as opposed

22

to incoming mail, there must be a 'closer fit between the regulation and the purpose it serves.'"

23

Id., quoting Thornburgh v. Abbott, 490 U.S. 401, 412 (1989). "However, in neither case must the

24

regulation satisfy a 'least restrictive means' test." Id. quoting Abbott, at 411-13 (explaining

25

Procunier v. Martinez).

26

Negligence does not suffice to state a constitutional claim under 42 U.S.C. § 1983. See

27

Daniels v. Williams, 474 U.S. 327, 333 (1986). To state a constitutional claim of interference

28
9

1

with the rights under section 1983, a prisoner must demonstrate that officials purposefully acted

2

to deprive him of that right. Id. Liberally construed, allegations that defendants seized and

3

withheld an inmate’s mail to and from his family are “sufficient to warrant ordering [defendants]

4

to file an answer.” Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir.2012); see also Thornburgh

5

v. Abbott, 490 U.S. 401, 413–19 (1989) (holding that the factors set forth in Turner v. Safley, 482

6

U.S. 78 (1987), apply to the regulation of incoming mail); Procunier v. Martinez, 416 U.S. 396,

7

413–14 (1974) (setting forth factors for evaluating claim relating to the regulation of outgoing

8

mail), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). Thus, Plaintiff

9

must state allegations that show prison staff intentionally interfered with his ability to

10

send/receive mail to state a cognizable claim for violation of his right to send and receive mail.

11

D. Order

12

Accordingly, the Court ORDERS:

13

1. Plaintiff’s Complaint is stricken from the record for lack of signature;

14

2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; and

15

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

16

complaint.

17

The failure to comply with this order will result in dismissal for failure to obey a court

18

order and to prosecute this action.

19
20
21

IT IS SO ORDERED.
Dated:

May 8, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
10