Uribe v. Taylor et al

Filing 6

ORDER signed by Magistrate Judge Dale A. Drozd on 4/29/11 ORDERING that 2 Motion to Proceed IFP is GRANTED; Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff's 5 Motion to provide the court with updated information is DENIED; Plaintiff's 1 complaint is DISMISSED with 30 days to file an amended complaint; Clerk of the Court is directed to provide plaintiff with the courts form complaint for a § 1983 action.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAVIER DIEGO URIBE,

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Plaintiff,

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vs.

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No. CIV S-10-2615 DAD P

S. TAYLOR, et al.,

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Defendant.

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ORDER
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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42

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U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915.

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This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule

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302 and 28 U.S.C. § 636(b)(1). Plaintiff commenced this action by filing his civil rights

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complaint and a motion top proceed in forma pauperis on September 27, 2010. On April 12,

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2011, plaintiff filed a documents styled as a “Motion For: Permission To Provide The Court

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With Updated Information In Support of Plaintiff’s Cause of Action, and Motion Seeking

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Monitary (sic) Compensation for Deliberate Acts of Retaliation.” (Doc. No. 5).

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Below, the court will address plaintiff’s filings.

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I. In Forma Pauperis Application

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Plaintiff has submitted an in forma pauperis application that makes the showing

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required by 28 U.S.C. § 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma

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pauperis.

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Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See

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28 U.S.C. §§ 1914(a) & 1915(b)(1). Plaintiff has been without funds for six months and is

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currently without funds. Accordingly, the court will not assess an initial partial filing fee. See 28

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U.S.C. § 1915(b)(1). Plaintiff will be obligated to make monthly payments of twenty percent of

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the preceding month’s income credited to plaintiff’s prison trust account. These payments shall

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be collected and forwarded by the appropriate agency to the Clerk of the Court each time the

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amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. See 28 U.S.C.

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§ 1915(b)(2).

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II. Plaintiff’s Motion For Permission to Provide the Court with Updated Information

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Through this motion it appears that plaintiff is seeking to supplement the

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allegations of his complaint. Therein, plaintiff advances new allegations which were not

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included in his complaint filed on September 27, 2010, and suggests that he seeks to add a

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retaliation claim to his complaint based on those allegations. Plaintiff is advised that the Local

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Rules of this court require that an action proceed on a pleading that is complete in itself without

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reference to prior pleadings. See Local Rule 220. While both the Federal Rules of Civil

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Procedure and the Local Rules of this court contemplate supplementation of an operative

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complaint under certain circumstances, as a general rule the court does not authorize

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supplemental complaints. In this court’s experience the filing of supplemental complaint

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presents an undue risk of piecemeal litigation that precludes orderly resolution of cognizable

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claims. Therefore, the court will deny plaintiff’s motion for permission to provide the court with

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updated information, dismiss plaintiff’s complaint and grant plaintiff leave to file an amended

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complaint so that all of his allegations and claims can be presented in a single pleading.
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III. Requirements Applicable to the Amended Complaint

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Plaintiff must allege facts demonstrating how the conditions complained of

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resulted in a deprivation of his federal constitutional or statutory rights. See Ellis v. Cassidy, 625

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F.2d 227 (9th Cir. 1980). The amended complaint must allege in specific terms how each named

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defendant was involved in the deprivation of plaintiff’s rights. Vague and conclusory allegations

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of official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982).

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III. Legal Standards Governing a Retaliation Claim

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“Within the prison context, a viable claim of First Amendment retaliation entails

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five basic elements: (1) An assertion that a state actor took some adverse action against an inmate

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(2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate’s

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal .” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.2005). Thus,

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to prevail on a retaliation claim, a prisoner must allege facts demonstrating that he was retaliated

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against for exercising a constitutional right and that retaliation was a substantial or motivating
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factor for the defendant’s alleged acts or conduct. Mt. Healthy City Bd. of Educ. v. Doyle, 429

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U.S. 274, 285-87 (1977); see also Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314-16 (9th

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Cir. 1989). The court must “‘afford appropriate deference and flexibility’ to prison officials in

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the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory.”

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Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995)(quoting Sandin v. Conner, 515 U.S. 472, 482

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(1995)). Therefore, the burden is on plaintiff to allege facts demonstrating “that there were no

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legitimate correctional purposes motivating the actions he complains of.” Id. at 808.

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IV. Other Defects in Plaintiff’s Complaint

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The court notes that in his complaint filed September 27, 2010, plaintiff claimed a

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violation of his due process rights in connection with a prison rules violation report issued

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against him for stalking floor staff and another prison rules violation report for refusing to accept

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assigned housing. Plaintiff is advised that “[p]rison disciplinary proceedings are not part of a

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criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not

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apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The U.S. Supreme Court has held that

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at a prison disciplinary hearing, the prisoner must receive: “(1) advance written notice of the

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disciplinary charges; (2) an opportunity, when consistent with institutional safety and

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correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a

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written statement by the factfinder of the evidence relied on and the reasons for the disciplinary

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action .” Superintendent v. Hill, 472 U.S. 445, 454 (1985). In addition, procedural due process

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requires that the findings of the prison disciplinary board be supported by some evidence in the

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record. Id. Therefore, in the amended complaint, for each rules violation, plaintiff must explain

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whether or not he lost time credits as a result and explain what specific procedural due process

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protection he did not receive. As to plaintiff’s contention that a Spanish-language interpreter

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should have been assigned to him in connection with the prison disciplinary proceedings,

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plaintiff must clarify whether he is alleging that he requested an interpreter and how he was

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harmed by not having an interpreter made available. In addition, plaintiff should attach to his
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amended complaint copies of any rules violation reports showing the disciplinary charge and

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final disposition of the disciplinary proceeding at issue.

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Plaintiff is again cautioned that he must set forth sufficient factual allegations

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showing the involvement of each of the named defendants in the alleged constitutional violation.

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Any amended complaint plaintiff elects to file must allege in specific terms how each named

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defendant was involved in the deprivation of his rights. There can be no liability under 42 U.S.C.

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§ 1983 unless there is some affirmative link or connection between a defendant’s actions and the

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claimed deprivation. Rizzo, 423 U.S. 362; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In this regard, the mere allegation that a

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named defendant signed a particular document or is named in a document will likely be deemed

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insufficient to show that defendant’s involvement in the alleged violation of plaintiff’s

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constitutional rights.

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CONCLUSION

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s September 27, 2010 application to proceed in forma pauperis (Doc.

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No. 2) is granted.
2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.

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The fee shall be collected and paid in accordance with this court’s order to the Director of the

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California Department of Corrections and Rehabilitation filed concurrently herewith.

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3. Plaintiff’s April 12, 2011 motion to provide the court with updated information
(Doc. No. 5) is denied.

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4. Plaintiff’s complaint (Doc. No. 1) is dismissed.

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5. Plaintiff is granted thirty days from the date of service of this order to file an

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amended complaint that complies with the requirements of the Civil Rights Act, the Federal

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Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the

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docket number assigned to this case and must be labeled “Amended Complaint”; plaintiff must
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use the form complaint provided by the court and answer each question in the form complaint;

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failure to file an amended complaint in accordance with this order will result in a

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recommendation that this action be dismissed without prejudice.

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6. The Clerk of the Court is directed to provide plaintiff with the court’s form

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complaint for a § 1983 action.

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DATED: April 29, 2011.

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DAD:4
uribe2615.lta

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