Winston v. Martinez
ORDER DISMISSING AMENDED COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Michael J. Seng on 11/05/2017. Thirty-Day Deadline. (Attachments: # 1 Amended Complaint Form)(Flores, E)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CASE NO. 1:17-cv-00774-MJS (PC)
ORDER DISMISSING AMENDED
COMPLAINT WITH LEAVE TO
(ECF No. 11)
THIRTY (30) DAY DEADLINE
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
18 rights action filed pursuant to 42 U.S.C. § 1983 on June 6, 2017. Plaintiff has consented
19 to Magistrate Judge jurisdiction. (ECF No. 9). No other parties have appeared.
On August 23, 2017, the Court screened Plaintiff‟s original complaint and
21 dismissed it with leave to amend. (ECF No. 10.) On September 11, 2017, Plaintiff timely
22 filed an amended complaint. (ECF No. 11.) The amended complaint is now before the
23 Court for screening.
The Court is required to screen complaints brought by prisoners seeking relief
26 against a governmental entity or an officer or employee of a governmental entity. 28
27 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner
28 has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon
1 which relief may be granted, or that seek monetary relief from a defendant who is
2 immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee,
3 or any portion thereof, that may have been paid, the court shall dismiss the case at any
4 time if the court determines that . . . the action or appeal . . . fails to state a claim upon
5 which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint must contain “a short and plain statement of the claim showing that
8 the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations
9 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported
10 by mere conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678
11 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are
12 not required to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d
13 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). While factual
14 allegations are accepted as true, legal conclusions are not. Iqbal, 556 U.S. at 678.
Under section 1983, Plaintiff must demonstrate that each defendant personally
16 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
17 2002). This requires the presentation of factual allegations sufficient to state a plausible
18 claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962,
19 969 (9th Cir. 2009). Prisoners proceeding pro se in civil rights actions are entitled to
20 have their pleadings liberally construed and to have any doubt resolved in their favor,
21 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), but nevertheless,
22 the mere possibility of misconduct falls short of meeting the plausibility standard, Iqbal,
23 556 U.S. at 678; Moss, 572 F.3d at 969.
Plaintiff is currently incarcerated at the California Correctional Institution in
26 Tehachapi, California, however he complains of acts that occurred at the California State
27 Prison, Corcoran in Corcoran, California (“CSP—COR”). Plaintiff brings this action
28 against Defendant I. Martinez, a correctional officer at CSP—COR.
Original Complaint and Screening Order
In the first screening Order, the Court summarized Plaintiff‟s allegations as
On May 18, 2016, he filed a grievance about a television
having been confiscated from his cell on May 3, 2016.
During a July 11, 2016, hearing on the grievance Defendant
retaliated against Plaintiff by filing a false Rules Violation
Report (“RVR”) accusing Plaintiff of having stolen the
television from another inmate. Defendant did so to prevent
Plaintiff from filing a second grievance. Plaintiff‟s fear of
Defendant kept him from filing a second grievance.
Plaintiff alleges this retaliation violated his rights under the
The Court dismissed the claim on the grounds that it could not “determine if
12 Plaintiff felt Defendant issued a false RVR in retaliation for the May 18, 2016 grievance or
13 to dissuade Plaintiff from filing a second grievance.” (ECF No. 10 at 4.) The Court
14 granted leave to amend and instructed Plaintiff that if he chooses to file an amended
15 complaint, it must “demonstrate a causal link between his protected activity and
16 Defendant‟s retaliation for it.” (Id.)
The amended complaint is significantly longer than the original and begins with a
19 confusing preface (with multiple exhibits) that does not clarify the original complaint or
20 advance a causal link between protected activity and purported retaliation. (ECF No. 11
21 at 2-5.) Plaintiff provides background information on his interactions with Defendant and
22 allegations of Defendant having routinely filed false RVRs. (Id.) He attaches copies of
23 prison records and an RVR, on which he editorializes with commentary, arrows, and
24 circled, highlighted text. (Id. at 4-5.)
After the preface, Plaintiff states that Defendant issued a false RVR in retaliation
26 for the May 18, 2016 grievance and to dissuade him from continuing that grievance
27 process. (Id. at 7.) Plaintiff follows with a long, winding narrative detailing the events
28 described in the original complaint.
That narrative, as best the Court can interpret, is as follows.
On May 18, 2016, Plaintiff filed a grievance concerning a television that was
3 inappropriately confiscated from his cell on May 3, 2016. At a July 11, 2016 hearing on
4 that grievance, Defendant handcuffed Plaintiff and threatened him with violence.
5 Defendant also issued a false RVR that alleged Plaintiff stole the television in question
6 from another inmate. Additionally, Defendant falsified various records to make it appear
7 the false RVR was issued before Plaintiff‟s grievance about the inappropriately8 confiscated television.
During and after this extended narrative, Plaintiff editorializes, posing questions to
10 the Court and commenting on the alleged actions, rather than stating facts in a
11 straightforward manner.
Plaintiff alleges that the retaliation violated his rights under the First Amendment.
In the original screening order, the Court stated that “[i]f Plaintiff files an amended
16 complaint, it should be brief, Fed. R. Civ. P. 8(a)[.]” (ECF No. 10 at 4.) The first amended
17 complaint does not heed this instruction. See Fed. R. Civ. P. 8(a)(2) (complaint must be
18 “a short and plain statement”); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)
19 (“Rule 8(a) is the starting point of a simplified pleading system, which was adopted to
20 focus litigation on the merits of a claim”). Plaintiff‟s claims must be set forth simply,
21 concisely and directly. Fed. R. Civ. P. 8(d)(1) (“[e]ach allegation must be simple, concise
22 and direct”); McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (“[t]he Federal Rules
23 require that averments „be simple, concise, and direct‟”); see Crawford-El v. Britton, 523
24 U.S. 574, 597 (1998) (reiterating that “firm application of the Federal Rules of Civil
25 Procedure is fully warranted” in prisoner cases).
The courts do grant leeway to pro se plaintiffs in construing their pleadings. See,
27 e.g., Brazil v. U.S. Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 1995) (“[a]lthough a pro se
28 litigant . . . may be entitled to great leeway when the court construes his pleadings, those
1 pleadings nonetheless must meet some minimum threshold in providing a defendant with
2 notice of what it is that it allegedly did wrong”). Even with leeway and liberal construction,
3 however, the complaint must not force the Court and Defendant to guess at what is being
4 alleged against whom, require the Court to spend its time “preparing the „short and plain
5 statement‟ which Rule 8 obligated plaintiff to submit,” or require the Court and Defendant
6 to prepare lengthy outlines “to determine who is being sued for what.” McHenry, 84 F.3d
7 at 1179. An excessively long and repetitive pleading, containing much narrative and
8 story-telling, without clear statement of which individual did what, very likely will result in
9 delaying the review required by 28 U.S.C. § 1915A and, ultimately, an order dismissing
10 Plaintiff‟s action pursuant to Fed. R. Civ. P. 41, for violation of these instructions. Id.
Plaintiff‟s amended complaint consists of lengthy, winding narratives and story-
12 telling. Figuring out from this complaint what specific allegations Plaintiff is making and
13 how those allegations support the single claim would be excessively time-consuming for
14 Defendant. While the Court has provided above its best interpretation of what it believes
15 Plaintiff is alleging, the amended complaint clouds the allegations to the point that the
16 Court cannot be certain if Plaintiff is actually stating a cognizable claim.
In short, the Court is currently unable to conduct the screening required by 28
18 U.S.C. § 1915A, because Plaintiff has failed to comply with the requirements of Fed. R.
19 Civ. P. 8(a)(2) and (d)(1). Accordingly, the amended complaint will be dismissed with
20 leave to file a second amended complaint. If plaintiff chooses to file a second amended
21 complaint, he must submit a short and plain statement demonstrating how the actions
22 complained of have resulted in a deprivation of his federal constitutional or statutory
23 rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). He must clearly identify the
24 action that the Defendant took that violated his constitutional rights. Neither the Court nor
25 the Defendant is required to review exhibits to determine what Plaintiff is alleging..
The allegations of the second amended complaint must be set forth in sequentially
27 numbered paragraphs (each paragraph number is one greater than the one before, each
28 paragraph has its own number, and no paragraph number is repeated anywhere in the
1 complaint). Each paragraph should be limited “to a single set of circumstances” where
2 possible. Fed. R. Civ. P. 10(b). Plaintiff must avoid excessive repetition of the same
3 allegations. Plaintiff must avoid narrative and storytelling. That is, the complaint should
4 not include every detail of what happened, nor recount the details of conversations.
5 Rather, the second amended complaint should contain only those facts needed to show
6 how a specific, named defendant legally wronged the plaintiff.
Plaintiff’s original complaint, which briefly stated his allegations in a
8 straightforward manner provides the Court and Defendant with a much clearer idea
9 of the allegations being raised than does the amended complaint. For any second
10 amended complaint, Plaintiff should follow closer to the manner in which the
11 original version was drafted, while simultaneously rectifying the deficiencies that
12 the Court identified in the original screening Order. Namely, Plaintiff must clearly
13 allege that Defendant issued a false RVR in retaliation for the May 18, 2016
14 grievance (if that is what he is alleging), and he must demonstrate a causal link
15 between his protected activity and Defendant’s retaliation. (See ECF No. 10 at 4.)
16 The amended complaint does not clearly do these things.
In addition, plaintiff is informed that the court cannot refer to a prior pleading in
18 order to make plaintiff‟s amended complaint complete. Local Rule 220 requires that an
19 amended complaint be complete in itself without reference to any prior pleading.
For Plaintiff‟s benefit, the Court again sets forth below the legal standard for a
22 retaliation claim:
Section 1983 provides for a cause of action against prison officials who retaliate
24 against inmates for exercising their constitutionally protected rights. Pratt v. Rowland, 65
25 F.3d 802, 806 n. 4 (9th Cir. 1995) (“[R]etaliatory actions by prison officials are cognizable
26 under § 1983.”) Within the prison context, a viable claim of retaliation entails five basic
27 elements: “(1) An assertion that a state actor took some adverse action against an inmate
28 (2) because of (3) that prisoner‟s protected conduct, and that such action (4) chilled the
1 inmate‟s exercise of his constitutional rights, and (5) the action did not reasonably
2 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th
3 Cir. 2005); accord Watison v. Carter, 668 F.3d at 1114-15; Silva v. Di Vittorio, 658 F.3d
4 1090, 1104 (9th Cir. 2011); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).
The second element focuses on causation and motive. See Brodheim, 584 F.3d
6 at 1271.
A plaintiff must show that his protected conduct was a “„substantial‟ or
7 „motivating‟ factor behind the defendant‟s conduct.” Id. (quoting Sorrano‟s Gasco, Inc. v.
8 Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). Although it can be difficult to establish the
9 motive or intent of the defendant, a plaintiff may rely on circumstantial evidence. Bruce v.
10 Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that a prisoner established a triable
11 issue of fact regarding prison officials‟ retaliatory motives by raising issues of suspect
12 timing, evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir.
13 1997); Pratt, 65 F.3d at 808 (“timing can properly be considered as circumstantial
14 evidence of retaliatory intent”).
In terms of the third prerequisite, filing a complaint or grievance is constitutionally
16 protected. Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989).
With respect to the fourth prong, the correct inquiry is to determine whether an
18 official‟s acts “could chill a person of ordinary firmness from continuing to engage in the
19 protected activity.” Pinard v. Clatskanie School Dist. 6J, 467 F.3d 755, 770 (9th Cir.
20 2006); see also White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000).
With respect to the fifth prong, a prisoner must affirmatively allege that “„the prison
22 authorities‟ retaliatory action did not advance legitimate goals of the correctional
23 institution or was not tailored narrowly enough to achieve such goals.” Rizzo v. Dawson,
24 778 F.2d at 532.
A second amended claim for retaliation shall set forth allegations in accordance
26 with this standard.
Accordingly, it is HEREBY ORDERED that:
Plaintiff‟s amended complaint (ECF No. 11) is DISMISSED with leave to
The Clerk‟s Office shall send Plaintiff a blank complaint form along with a
copy of the amended complaint filed September 11, 2017;
Within thirty (30) days from the date of service of this order, Plaintiff must
either file a second amended complaint curing the deficiencies identified by
the Court in this Order or a notice of voluntary dismissal;
If Plaintiff fails to comply with this Order, this action will be dismissed,
without prejudice, for failure to prosecute and failure to obey a court order.
IT IS SO ORDERED.
November 5, 2017
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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