Bjorlin v. McDonald, et al

Filing 15

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/2/2012 ORDERING that the 11 findings and recommendations are VACATED; and the amended complaint is DISMISSED, with leave to amend within 30 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL P. BJORLIN,

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Plaintiff,

No. CIV S-10-1825 WBS EFB P

vs.

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M.D. MCDONALD, et al.,

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Defendants.

ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. This case was referred to the undersigned under Local Rule 302(c)(17), pursuant

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to 28 U.S.C. § 636(b)(1). On December 10, 2010, the court screened plaintiff’s original

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complaint, dismissed it with leave to amend and granted plaintiff thirty days to file an amended

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complaint. When plaintiff failed to timely comply, the undersigned recommended the case be

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dismissed for failure to prosecute. Dckt. No. 11. Plaintiff filed objections on February 7, 2011,

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Dckt. No. 12, and an amended complaint on March 4, 2011, Dckt. No. 14. Good cause

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appearing, the court vacates the January 31, 2011 findings and recommendations and screens

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plaintiff’s second amended complaint pursuant to 28 U.S.C. § 1915.

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For the reasons stated below, the amended complaint is dismissed as frivolous, for failure

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to state a claim, and for violating Rule 8 of the Federal Rules of Civil Procedure. The court will

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grant plaintiff one final opportunity to amend his complaint.

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I.

Background

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The court granted plaintiff leave to proceed in forma pauperis on December 10, 2010,

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and dismissed the original complaint with leave to amend. Dckt. No. 8. That order explained

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that pursuant to 28 U.S.C. § 1915A(a), the court is directed to identify cognizable claims or

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dismiss the complaint, or any portion of the complaint, if it is frivolous, malicious, fails to

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state a claim upon which relief may be granted, or seeks monetary relief from an immune

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defendant.

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The court dismissed the complaint as frivolous pursuant to 28 U.S.C. § 1915A(b)(1)

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because it contained virtually identical allegations to a complaint plaintiff filed in an earlier

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lawsuit. Dckt. No. 8 (referring to Bjorlin v. Hubbard, No. Civ. S-09-1793 GEB GGH Dckt. Nos.

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1 (June 29, 2009 original complaint), 12 (October 22, 2009 amended complaint)); see also Cato

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v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (A complaint that “merely repeats

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pending or previously litigated claims” may be dismissed as frivolous under the authority of 28

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U.S.C. § 1915)). The court granted plaintiff leave to file an amended complaint that was not

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duplicative of the earlier action, in that it should only include the allegations pertaining to events

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allegedly occurring after October 22, 2009.

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II.

Amended Complaint

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The amended complaint suffers from the same defect as plaintiff’s original complaint.

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Despite the court’s previous admonishment, plaintiff’s amended complaint does not materially

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differ from the original complaint. It appears that plaintiff made no attempt to comply with the

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court’s original screening order. The allegations in the amended complaint are basically

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identical to those raised in plaintiff’s earlier filed action, and thus, remain duplicative and

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frivolous.
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The amended complaint also violates Rule 8 of the Federal Rules of Civil Procedure.

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Plaintiff appears to have submitted three slightly different, hand-written versions of the same

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complaint. Rule 8 of requires a complaint to include “a short and plain statement of the claim”

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showing entitlement to relief. Fed. R. Civ. P. 8(a)(2). Each averment of a pleading must be

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simple, concise, and direct. Even where the factual elements of the causes of action are present,

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but are scattered throughout the complaint and not organized into a “short and plain statement of

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the claim,” dismissal for failure to satisfy Rule 8(a)(2) is proper. McHenry v. Renne, 84 F.3d

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1172, 1178 (9th Cir. 1996).

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Moreover, the allegations in the amended complaint regarding events alleged to have

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occurred after October 22, 2009, fail to state a claim upon which relief can be granted. Plaintiff

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alleges that defendant Dharlingue failed to properly investigate plaintiff’s claims of being

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sexually assaulted in connection with an October 29, 2009 hearing on a Rules Violation Report

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issued because of plaintiff’s refusal to accept a cellmate.

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Plaintiff alleges Dharlingue, the hearing officer, violated his equal protection and due

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process rights. To state a claim for a violation of the equal protection clause, a plaintiff must

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show that the defendant acted with an intent or purpose to discriminate against the plaintiff based

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upon membership in a protected class. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

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1998); Buckley v. Valeo, 424 U.S. 1, 93 (1976). The court can conceive of no basis for an equal

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protection claim based on plaintiff’s allegations.

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Nor do the allegations state a cognizable due process claim. The Due Process Clause of

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the Fourteenth Amendment protects prisoners from being deprived of liberty without due process

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of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). However, “[p]rison disciplinary

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proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant

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in such proceedings does not apply.” Id. In a disciplinary proceeding where a liberty interest is

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at stake, due process requires that “some evidence” support the disciplinary decision.

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Superintendent v. Hill, 472 U.S. 445, 455 (1985). The inmate must also receive: “(1) advance
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written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional

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safety and correctional goals, to call witnesses and present documentary evidence in his defense;

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and (3) a written statement by the factfinder of the evidence relied on and the reasons for the

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disciplinary action.” Id. at 454 (citing Wolff, 418 U.S. at 563-67). Where an inmate is illiterate

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or the facts of the case are complex, he may be entitled to seek the aid of a fellow inmate or staff.

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Wolff, 418 U.S. at 570.

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Plaintiff does not allege that the rules violation hearing affected any liberty interest or

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that the disciplinary decision was not supported by some evidence. Nor does plaintiff allege that

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any of the Wolff guarantees, discussed above, were not met. To the extent plaintiff claims he

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was entitled to staff assistance in investigating his claim of sexual assault, that claim must also

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fail because plaintiff’s allegations do not suggest he was entitled to such assistance.

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III.

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Final Opportunity to Amend
The court will grant plaintiff a final opportunity to amend to attempt to cure the

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deficiencies identified in this order, as well as in the court’s previous screening order. That

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means plaintiff must omit all duplicative and frivolous allegations and focus solely on his

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claim(s) pertaining to defendant Dharlingue and the October 29, 2009 Rules Violation Hearing.

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Plaintiff is hereby warned that he may not change the nature of this suit by alleging new,

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unrelated claims in an amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)

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(no “buckshot” complaints).

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Should plaintiff choose to file an amended complaint, he shall identify each defendant in

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both the caption and the body of the amended complaint, and clearly set forth the allegations

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against each such defendant. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, any

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amended complaint must include “a short and plain statement of the claim” showing entitlement

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to relief. Fed. R. Civ. P. 8(a)(2).

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Any amended complaint must be complete in itself without reference to any prior

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pleading. E.D. Cal. Local Rule 220; see Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once

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plaintiff files an amended complaint, the original pleading is superseded.

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Accordingly, the court hereby ORDERS that:

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1. The January 31, 2011 findings and recommendations, Dckt. No. 11, are vacated; and

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2. The amended complaint is dismissed, with leave to amend within 30 days. The

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second amended complaint must bear the docket number assigned to this case and be titled

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“Second Amended Complaint.” Failure to file an amended complaint will result in a

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recommendation that this action be dismissed as frivolous and for failure to state a claim. If

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plaintiff files an amended complaint stating a cognizable claim the court will proceed with

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service of process by the United States Marshal.

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DATED: May 2, 2012.

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