Hall v. Deuel Vocational Institution et al

Filing 36

ORDER signed by Magistrate Judge Allison Claire on 9/7/2017 DISMISSING the Second Amended Complaint with leave to amend and plaintiff may file a Third Amended Complaint within 30 days. The Clerk shall send plaintiff, together with this order, a blank complaint form used by pro se civil rights plaintiffs. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERRELL DWAYNE HALL,

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No. 2:13-cv-0746 AC P

Plaintiff,
v.

ORDER

DEUEL VOCATIONAL INSTITUTION
et al.,
Defendants.

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INTRODUCTION

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Plaintiff is a former state prisoner who was paroled after commencing this prisoner civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis with

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his proposed Second Amended Complaint (SAC). See ECF No.22; see also ECF No. 34.

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Plaintiff has consented to the jurisdiction of the magistrate judge for all purposes pursuant

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to 28 U.S.C. § 636(c) and Local Rule 305(a). See ECF No. 4. For the reasons set forth below,

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this court dismisses the SAC with leave to file a Third Amended Complaint.
SCREENING OF COMPLAINT PURSUANT TO 28 U.S.C. § 1915A

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I.

Legal Standards for Screening a Prisoner Civil Rights Complaint

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” fail to state a claim upon which relief may be granted, or seek monetary

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may dismiss a claim as frivolous when it is based on an indisputably

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meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at

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327. The critical inquiry is whether a constitutional claim, however inartfully pled, has an

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arguable legal and factual basis.

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A district court must construe a pro se pleading liberally to determine if it states a

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potentially cognizable claim. The court must explain to the plaintiff any deficiencies in his

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complaint and accord plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122,

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1130-31 (9th Cir. 2000). While detailed factual allegations are not required, “[t]hreadbare recitals

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of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corporation v. Twombly, 550

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U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to

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‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

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550 U.S. at 570). “While legal conclusions can provide the framework of a complaint, they must

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be supported by factual allegations.” Id. at 679. Rule 8 of the Federal Rules of Civil Procedure

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“requires only a short and plain statement of the claim showing that the pleader is entitled to

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relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it

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rests.” Twombly, 550 U.S. at 555 (citation and internal quotation and punctuation marks

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omitted).

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A pro se litigant is entitled to notice of the deficiencies in the complaint and an

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opportunity to amend, unless the complaint’s deficiencies cannot be cured by amendment. See

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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

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II.

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In his SAC, plaintiff contends that in December 2012, during his physical examination

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Allegations of Plaintiff’s SAC

when initially incarcerated, plaintiff was administered an injection, reportedly against hepatitis,
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that allegedly caused significant changes to his entire body resulting in overt feminization. See

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ECF No. 22. These changes have been distressing to plaintiff, both privately and due to the

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responses of inmates and prison staff. Plaintiff alleges that he was subjected to relentless verbal

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harassment and name calling, the tampering of his food, and intentional obstruction in his

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attempts to exhaust administrative remedies. In the SAC, which names more than thirty

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defendants, plaintiff seeks damages, “medical fees payed for the massive surgery I need,” fees

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and costs, and a “public apology for the defamation.” Id. at 3.

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III.

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Several overarching problems beset the SAC. First, the complaint contains myriad

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unrelated factual allegations and putative claims against numerous defendants. Although a

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plaintiff may join multiple claims against a single defendant, he may not pursue unrelated claims

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against different defendants in the same action. As explained by the Seventh Circuit Court of

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Appeals:

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Analysis

The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party
asserting a claim, . . . may join, as independent or as alternate
claims, as many claims . . . as the party has against an opposing
party.’ Thus multiple claims against a single party are fine, but
Claim A against Defendant 1 should not be joined with unrelated
Claim B against Defendant 2. Unrelated claims against different
defendants belong in different suits, not only to prevent the sort of
morass [a multiple claim, multiple defendant] suit produce[s], but
also to ensure that prisoners pay the required filing fees - for the
Prison Litigation Reform Act limits to 3 the number of frivolous
suits or appeals that any prisoner may file without prepayment of
the required fees. 28 U.S.C. § 1915(g).

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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Fed. R. Civ. P. 20(a)(2) (joinder of

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defendants not permitted unless both commonality and same transaction requirements are

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satisfied).

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Second, most of plaintiff’s allegations fail to assert the requisite causal link between the

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challenged conduct, a specific defendant, and a clearly identified constitutional violation.

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Examples include the following: Plaintiff alleges that the challenged injection was administered

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by “RN Sally T. Legaspi or Pashtoon Safi PA,” SAC, ECF No. 22 at 3; plaintiff alleges that

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correctional counselor Mrs. Thomas “was part of a crew that spread rumor[s] back in 08-09 and
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spit in and put stuff in my food; Her, M. Sur, J.C. Mondoza, Perail, Uribia and McQuire,” id. at 7;

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and plaintiff alleges that he “addressed these issues to the head psychs Doctor, Dr. R. Mora, Ph.

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D., Dr. Neies, and Clinician N. Booth,” naming both Mora and Neies as defendants, id. at 11.

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These allegations lack the requisite “linkage” to support a civil rights claim. “A person

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‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if he

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does an affirmative act, participates in another’s affirmative acts or omits to perform an act which

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he is legally required to do that causes the deprivation of which complaint is made.” Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978); see also Leer v. Murphy, 844 F.2d 628, 633 (9th

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Cir.1988) (“The inquiry into causation must be individualized and focus on the duties and

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responsibilities of each individual defendant whose acts or omissions are alleged to have caused a

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constitutional deprivation.”). There can be no liability under 42 U.S.C. § 1983 unless there is

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some affirmative link or connection between a specific defendant’s actions and the claimed

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deprivation. Rizzo v. Goode, 423 U.S. 362, 371 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th

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Cir. 1980); Johnson, supra, 588 F.2d at 743.

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Third, plaintiff’s factual allegations fail to support the elements of his putative claims.

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For example, to state a claim for deliberate indifference, a prisoner must allege that a prison

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official “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety; the official must

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both be aware of the facts from which the inference could be drawn that a substantial risk of

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serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837

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(1994). Plaintiff’s allegations concerning the challenged injection fail to support these elements.

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Further, “verbal harassment or abuse . . . [alone] is insufficient to state a constitutional

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deprivation under 42 U.S.C. 1983.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987)

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(citation and internal quotation omitted). Even “[a] mere threat may not state a cause of action”

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under the Eighth Amendment, even if it is a threat against exercising the right of access to the

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courts. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (per curiam); see also Corales v. Bennett,

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567 F.3d 554, 564-65 (9th Cir. 2009). Only verbal harassment clearly intended to humiliate or

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endanger the inmate may, in certain circumstances, violate the Constitution. See Somers v.

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Thurman, 109 F.3d 614, 622 (9th Cir. 1997); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996),
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amended by 135 F.3d 1318 (9th Cir. 1998); see also Burton v. Livingston, 791 F.2d 97, 100 (8th

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Cir. 1986) (finding potentially cognizable Eighth Amendment claim based on the plaintiff’s

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allegation that a correctional officer “pointed a lethal weapon at the prisoner, cocked it, and

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threatened him with instant death”).

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In plaintiff’s favor, however, is the recent ruling that former prisoners are not required to

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demonstrate administrative exhaustion if their amended complaints are filed after their release

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from incarceration. See Jackson v. Fong, __ F.3d. __, 2017 WL 3758338, at *7, 2017 U.S. App.

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LEXIS 16759, at *17, Court of Appeal Case No. 15-15547 (9th Cir. Aug. 31, 2017) (“A plaintiff

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who was a prisoner at the time of filing his suit but was not a prisoner at the time of his operative

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complaint is not subject to a PLRA exhaustion defense.”).

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For these many reasons, the SAC must be dismissed. Plaintiff will be accorded one final

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opportunity to file a further amended complaint that is sufficiently narrow in scope, with explicit

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factual allegations against individual defendants that support cognizable legal claims.

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IV.

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The court has screened your SAC and finds that it fails to state a cognizable claim against

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any defendant. The factual allegations of the SAC are too wide-ranging and imprecise to identify

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the challenged conduct of each defendant or, therefore, to support the elements of a cognizable

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legal claim against any defendant. The format of the SAC, commonly known as a “shotgun”

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complaint, contains too many unrelated factual allegations and putative claims against too many

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defendants. Therefore, this court is dismissing your SAC with leave to file a Third Amended

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Complaint (TAC). This will be your final opportunity to file a cognizable complaint. Failure to

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file an adequate TAC, or to respond to this order, will result in the dismissal of this action without

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prejudice.

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Summary

CONCLUSION

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1. The Second Amended Complaint is dismissed with leave to amend.

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2. Plaintiff may file a proposed Third Amended Complaint within thirty days after service

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of this order.
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3. The Clerk of Court is directed to send plaintiff, together with service of this order, a

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blank complaint form used by civil rights plaintiffs proceeding in this court pro se (plaintiff is no

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longer incarcerated).

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4. Failure to timely file a proposed Third Amended Complaint will result in the dismissal

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of this action without prejudice.

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SO ORDERED.

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DATED: September 7, 2017

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