Malone v. Gonzalez

Filing 12

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/2/12 ORDERING that Plaintiff's request to proceed in forma pauperis 2 , 5 , 9 is granted; The complaint is dismissed with leave to amend within 30 days. Failure to comply with this orde r will result in this action being dismissed for failure to state a claim. If plaintiff files an amended complaint stating a cognizable claim the court will proceed with service of process by the United States Marshal; Plaintiff's motion for a preliminary injunction 7 is denied. (Becknal, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DE SHAWN MALONE,
Plaintiff,

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vs.

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No. 2:11-cv-2468 EFB P

F. GONZALES,
Defendant.

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ORDER
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Plaintiff is a state prisoner proceeding pro se with this civil rights action under 42 U.S.C.

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§ 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in forma

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pauperis and a motion for injunctive relief. This proceeding was referred to this court by Local

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Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to plaintiff’s

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consent. Dckt. No. 4; see E.D. Cal. Local Rules, Appx. A, at (k)(4).

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I.

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Request to Proceed In Forma Pauperis
Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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Dckt. Nos. 2, 5, 9. Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1)

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and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff

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to collect and forward the appropriate monthly payments for the filing fee as set forth in 28

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U.S.C. § 1915(b)(1) and (2).
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II.

Screening Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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In order to avoid dismissal for failure to state a claim a complaint must contain more than

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“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause

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of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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Furthermore, a claim upon which the court can grant relief has facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to

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the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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A pro se plaintiff must satisfy the pleading requirements of Rule 8(a) of the Federal

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Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and plain

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statement of the claim showing that the pleader is entitled to relief, in order to give the defendant

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fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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The court has reviewed plaintiff’s complaint pursuant to 28 U.S.C. § 1915A and finds it

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does not state a cognizable claim. The complaint names Gonzales as the sole defendant but

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includes no factual allegations linking Gonzales to a deprivation of plaintiff’s federal rights.

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Plaintiff alleges in vague and conclusory terms that both the inmate appeals system and the law

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library at the California Correctional Institution are not adequate. The complaint fails to allege

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sufficient facts to demonstrate an access to the courts claim. Although the Federal Rules adopt a

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flexible pleading policy, a complaint must give fair notice and state the elements of the claim

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plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).

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Plaintiff must allege with at least some degree of particularity overt acts which defendants

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engaged in that support plaintiff's claim. Id. Because plaintiff fails to state a claim for relief, the

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complaint must be dismissed.

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Plaintiff will be granted leave to file an amended complaint, if plaintiff can allege a

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cognizable legal theory against a proper defendant and sufficient facts in support of that

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cognizable legal theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(district courts must afford pro se litigants an opportunity to amend to correct any deficiency in

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their complaints). Should plaintiff choose to file an amended complaint, the amended complaint

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shall clearly set forth the claims and allegations against each defendant. Any amended

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complaint must cure the deficiencies identified above and also adhere to the following

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requirements:

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Any amended complaint must identify as a defendant only persons who personally

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participated in a substantial way in depriving him of a federal constitutional right. Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a

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constitutional right if he does an act, participates in another’s act or omits to perform an act he is

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legally required to do that causes the alleged deprivation). It must also contain a caption

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including the names of all defendants. Fed. R. Civ. P. 10(a).

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Any amended complaint must be written or typed so that it so that it is complete in itself

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without reference to any earlier filed complaint. L.R. 220. This is because an amended

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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)). Plaintiff may not change the nature of this suit by alleging new, unrelated claims in an

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amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”

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complaints).

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In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) the violation

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of a federal constitutional or statutory right; and (2) that the violation was committed by a person

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acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil

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rights claim unless the facts establish the defendant’s personal involvement in the constitutional

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deprivation or a causal connection between the defendant’s wrongful conduct and the alleged

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constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v.

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Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

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Prisoners have a constitutional right of access to the courts. Bounds v. Smith, 430 U.S.

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817, 828 (1977). Prisoners also have a right “to litigate claims challenging their sentences or the

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conditions of their confinement to conclusion without active interference by prison officials.”

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Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011). An inmate alleging a violation of this

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right must show that he suffered an actual injury. Lewis v. Casey, 518 U.S. 343, 349-51 (1996).

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That is, plaintiff must allege that the deprivation actually injured his litigation efforts, in that the

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defendant hindered his efforts to bring, or caused him to lose, an actionable claim challenging

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his criminal sentence or conditions of confinement. See id. at 351; Christopher v. Harbury, 536

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U.S. 403, 412-15 (2002).
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III.

Request for Injunctive Relief
Plaintiff filed a motion for a preliminary injunction, asking the court to order defendant

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Gonzales to give plaintiff “immediate access to the state form(s) necessary to initiate a civil suit

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in state court.” Dckt. No. 7 at 7. A preliminary injunction will not issue unless necessary to

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prevent threatened injury that would impair the court’s ability to grant effective relief in a

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pending action. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir.

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1984); Gon v. First State Ins. Co., 871 F.2d 863 (9th Cir. 1989). A preliminary injunction

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represents the exercise of a far reaching power not to be indulged except in a case clearly

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warranting it. Dymo Indus. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964). In order to be

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entitled to preliminary injunctive relief, a party must demonstrate “that he is likely to succeed on

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the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

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balance of equities tips in his favor, and that an injunction is in the public interest.” Stormans,

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Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council,

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Inc., 555 U.S. 7 (2008)). The Ninth Circuit Court of Appeals has also held that the “sliding

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scale” approach it applies to preliminary injunctions as it relates to the showing a plaintiff must

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make regarding his chances of success on the merits survives Winter and continues to be valid.

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Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, at 1134-35 (9th Cir. 2011). Under this

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sliding scale the elements of the preliminary injunction test are balanced. As it relates to the

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merits analysis, a stronger showing of irreparable harm to plaintiff might offset a lesser showing

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of likelihood of success on the merits. Id. In cases brought by prisoners involving conditions of

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confinement, any preliminary injunction “must be narrowly drawn, extend no further than

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necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive

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means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2).

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As discussed above, plaintiff’s complaint will be dismissed for failure to state a claim

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upon which relief can be granted. Plaintiff is therefore unlikely to succeed on the merits of his

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claims, and there are no defendants against whom this court could enter an order. If plaintiff
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files an amended complaint that states a cognizable claim, the court will order the United States

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Marshal to serve the amended complaint upon the named defendant(s). The court cannot issue

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an order against individuals who are not parties to a suit pending before it. See Zenith Radio

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Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). See also Zepeda v. United States

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Immigration Service, 753 F.2d 719, 727 (9th Cir. 1985) (“A federal court may issue an

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injunction if it has personal jurisdiction over the parties and subject matter jurisdiction over the

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claim; it may not attempt to determine the rights of persons not before the court.”). Accordingly,

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the court will deny plaintiff’s motion for a preliminary injunction or as premature.

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IV.

Order

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Accordingly, the court hereby orders that:

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1. Plaintiff’s request to proceed in forma pauperis (Dckt. Nos. 2, 5, 9) is granted.

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

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complaint must bear the docket number assigned to this case and be titled “First Amended

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Complaint.” Failure to comply with this order will result in this action being dismissed for

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failure to state a claim. If plaintiff files an amended complaint stating a cognizable claim the

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court will proceed with service of process by the United States Marshal.

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3. Plaintiff’s motion for a preliminary injunction (Dckt. No. 7) is denied.
Dated: August 2, 2012.

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