Romo v. Cate et al

Filing 18

ORDER to SHOW CAUSE signed by Magistrate Judge Dale A. Drozd on 4/19/13 ordering within 20 days from the date of this order plaintiff shall show cause in writing if any he has why this action should not be dismissed as a sanction for his failure to comply with the court's 09/24/12 order. The clerk of the court is directed to send plaintiff a copy of the court's form civil rights complaint and accompanying instructions. (Plummer, 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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EZEQUIEL ROMO,

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Plaintiff,

No. 2:11-cv-2898 DAD P

vs.
MATHEW CATE, et al.,

ORDER AND

Defendants.

ORDER TO SHOW CAUSE
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil

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rights action pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local

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Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has consented to United States Magistrate

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Judge jurisdiction over this action pursuant to 28 U.S.C. § 636(c).

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By order filed September 24, 2012, plaintiff’s third amended complaint was

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dismissed with leave granted to file a fourth amended complaint. (ECF No. 15.) On October 19,

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2012, plaintiff filed a fourth amended compliant. (ECF No. 16.)

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The court is required to screen plaintiff’s fourth amended complaint pursuant to

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28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has

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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief

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may be granted, or that seek monetary relief from a defendant who is immune from such relief.
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28 U.S.C. § 1915A(b)(1),(2). A claim is legally frivolous when it lacks an arguable basis either

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in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d

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1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is

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based on an indisputably meritless legal theory or where the factual contentions are clearly

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baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim,

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however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885

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F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

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Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and

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plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

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(1957)). In order to survive dismissal for failure to state a claim a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

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U.S. at 555. However, “[s]pecific facts are not necessary; the statement [of facts] need only

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‘“give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”’”

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Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell, 550 U.S. at 555, in turn quoting

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Conley v. Gibson, 355 U.S. 41, 47 (1957)). In reviewing a complaint under this standard, the

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court must accept as true the allegations of the complaint in question, Erickson, 551 U.S. at 94,

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and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416

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U.S. 232, 236 (1974).

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As with his previous complaints, the claims in plaintiff’s fourth amended

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complaint arise from a period of time that commenced on November 13, 2009, when he was

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transferred to California State Prison-Sacramento (CSP-Sacramento) for resentencing in the

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Sacramento County Superior Court. Plaintiff alleges that while at CSP-Sacramento he was

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placed on contraband surveillance watch (CSW) for an extended period of time without due
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process and without probable cause, that the placement was retaliatory, and that the conditions of

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his confinement violated the Eighth Amendment. While plaintiff’s allegations are clear, the

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fourth amended complaint continues to suffer from the same defect as his third amended

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complaint, described to plaintiff in this court’s September 24, 2012 order (ECF No. 15): the lack

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of clarity concerning the defendants he seeks to name in this action.

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Plaintiff names fourteen individual defendants in section III of his fourth amended

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complaint. As with his third amended complaint, several other individuals are identified as

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defendants in the body of plaintiff’s fourth amended complaint. In addition, as with the third

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amended complaint, in certain parts of the fourth amended complaint, specific acts or omissions

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are attributed to individually named defendants; in other parts acts or omissions are attributed to

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“defendants” generally. See, e.g., Fourth Amended Complaint, filed October 19, 2012 (ECF No.

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16), at ¶ 26.

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For these reasons, the court finds that the complaint does not contain a short and

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plain statement of claims against specific defendants as required by Fed. R. Civ. P. 8(a)(2).

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Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice

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and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency,

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733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must clearly identify each defendant and the specific

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acts or omissions he contends are attributable to that defendant and that support his claim. Id.

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Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the court

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will not serve the fourth amended complaint.

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In the court’s September 24, 2012 order, plaintiff was specifically ordered to list

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every defendant that he is suing in this action in the caption of the form complaint and in section

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III of the form complaint. (See Order filed Sept. 24, 2012 (ECF No. 15) at 4.) Plaintiff was

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cautioned that the court would not order service of process on any defendant not listed in both the

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caption and section III of the form complaint. Id. Plaintiff has not complied with that order.

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Specifically, there are individuals identified as defendants in the body of the complaint who are
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not listed as defendants in either the caption or section III of the form complaint, and there are

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individuals identified as defendants in section III of the form complaint who are not listed as

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defendant in the caption of the complaint. Plaintiff is required to clearly identify each individual

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that he names as a defendant in this action in the caption of the operative complaint, and in

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section III of the form complaint. No individual should be identified as a defendant who is not

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listed in both the caption and section III of the form complaint.

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Good cause appearing, plaintiff will be ordered to show cause in writing why this

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action should not be dismissed as a sanction for his failure to comply with the court’s September

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24, 2012 order. The order to show cause may be discharged if plaintiff files with his response a

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fifth amended complaint on the form provided with this order that specifically lists all defendants

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in both the caption of the fifth amended complaint and in section III of the form complaint.

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Plaintiff is cautioned that failure to comply with this order will result in the dismissal of this

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action pursuant to Fed. R. Civ. P. 41(b).

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

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1. Within twenty days from the date of this order plaintiff shall show cause in

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writing if any he has why this action should not be dismissed as a sanction for his failure to

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comply with the court’s September 24, 2012 order; and

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2. The Clerk of the Court is directed to send plaintiff a copy of the court’s form

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civil rights complaint and accompanying instructions.

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DATED: April 19, 2013.

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DAD:12
romo2898.osc

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