Shahid v. Aldaz et al

Filing 13

ORDER signed by Magistrate Judge Dale A. Drozd on 7/10/2014 DISMISSING plaintiff's amended complaint; GRANTING plaintiff's 12 motion to amend, and plaintiff has 30 days to file a second amended complaint; DENYING, without prejudice, plaintiff's 12 motion for preliminary injunctive relief; and the Clerk shall send plaintiff the form for filing a civil rights action.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UMAR SHAHID,

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No. 2:14-cv-0454 DAD P
Plaintiff,

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v.

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I. ALDAZ et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed
pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s amended complaint.
SCREENING REQUIREMENT

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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 an officer or employee of a governmental entity. See 28 U.S.C. §

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1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims

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

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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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, therefore, dismiss a claim as frivolous where it is based on an
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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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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 plain

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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 (1957)).

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However, 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. In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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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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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of
their employees under a theory of respondeat superior and, therefore, when a named defendant
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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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PLAINTIFF’S AMENDED COMPLAINT AND RELATED FILINGS
In his second amended complaint, plaintiff identifies Aldez, Williams, Rodriguez, Foulk,

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and Barnes as the defendants. All of the named defendants appear to be employed at High Desert

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State Prison. Plaintiff alleges that prison officials have refused to process his marriage

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application and continue to harass and retaliate against him and his fiancée for lodging

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complaints against staff for their misconduct. (Am. Compl. at 3-4.)

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In addition to his amended complaint, plaintiff has filed a letter addressed to the Clerk of

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the Court as well as a motion to amend his complaint/motion for preliminary injunctive relief. In

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these documents, plaintiff expresses that he would like to add retaliation claims to his complaint

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and describes incidents where prison officials have threatened him and his safety. Therein,

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plaintiff also requests preliminary injunctive relief. (Pl.’s Letter at 1 & Pl.’s Mots. at 1-3.)

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DISCUSSION

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The allegations in plaintiff’s amended complaint are so vague and conclusory that the

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court is unable to determine whether the current action is frivolous or fails to state a claim for

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relief. The amended complaint does not contain a short and plain statement as required by

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Federal Rule of Civil Procedure 8(a)(2). Although the Federal Rules adopt a flexible pleading

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policy, a complaint must give fair notice to the defendants and must allege facts that support the

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elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646,

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649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts

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which defendants engaged in that support his claims. Id. Because plaintiff has failed to comply

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with the requirements of Federal Rule of Civil Procedure 8(a)(2), the amended complaint must be

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dismissed. In the interests of justice, however, the court will grant plaintiff’s motion to amend

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and authorize him thirty days leave to file a second amended complaint.
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In any second amended complaint plaintiff elects to file, he must identify each defendant

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by name and state therein all of the claims that he seeks to bring in this action. For example, if

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plaintiff wishes to pursue right-to-marry and retaliation claims against defendants, he should

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include both such claims in his second amended complaint. The court will not allow the

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piecemeal filing of supplemental letters, motions, and complaints in this action. See Local Rule

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15-220.

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Turning now to plaintiff’s constitutional claims, as to any right-to-marry claim, plaintiff is

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advised that “[w]hile the basic right to marry survives imprisonment, most of the attributes of

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marriage – cohabitation, physical intimacy, and bearing and raising children – do not.” Gerber v.

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Hickman, 291 F.3d 617, 621 (9th Cir. 2002). In this regard, institutional confinement supersedes

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many aspects of marriage because “incarceration is inconsistent with the vast majority of

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concomitants to marriage, privacy, and personal intimacy.” Id. Thus, it is well established that

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prisoners have no constitutional right to contact or conjugal visits. Id.

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Insofar as plaintiff believes defendants are denying him the basic right to marry, he will

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need to identify in his amended complaint which of the named defendants have been involved in

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the alleged deprivation and allege facts explaining how their actions rose to the level of a

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constitutional violation. There can be no liability under 42 U.S.C. § 1983 unless there is some

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affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo

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v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.

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Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations of official

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participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266,

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268 (9th Cir. 1982).

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As to plaintiff’s retaliation claim, he is advised that both litigation in this court and filing

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administrative grievances are protected activities, and it is impermissible for prison officials to

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retaliate against prisoners for engaging in these activities. See Rhodes v. Robinson, 408 F.3d

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559, 568 (9th Cir. 2005). As the Ninth Circuit has explained:

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Within the prison context, a viable claim of First Amendment
retaliation entails five basic elements: (1) An assertion that a state
actor took some adverse action against an inmate (2) because of (3)
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that prisoner’s protected conduct, and that such action (4) chilled
the inmate’s exercise of his First Amendment rights, and (5) the
action did not reasonably advance a legitimate correctional goal.
Rhodes, 408 F.3d at 567-68.
Here, plaintiff’s amended complaint does not contain specific allegations against

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defendants to support a retaliation claim. Moreover, although plaintiff has filed additional

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documents with the court in which he describes how “prison guards” or “prison officials”

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retaliated against him, he has not identified any of those “prison guards” or “prison officials” by

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name. In his second amended complaint, plaintiff must identify who has retaliated against him

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and allege facts explaining what retaliatory conduct they purportedly engaged in against him.

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Moreover, plaintiff is cautioned that not every allegedly adverse action is sufficient to support a

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claim for retaliation. See, e.g., Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000)

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(retaliation claim cannot rest on the logical fallacy of post hoc, ergo propter hoc, i.e., “after this,

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therefore because of this.”). To support any retaliation claim, plaintiff should allege why he

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believes any specific defendant’s actions were motivated by, or because of, plaintiff’s

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engagement in protected conduct such as filing administrative grievances.

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Plaintiff is informed that the court cannot refer to prior pleadings in order to make his

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second amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. This is because, as a general rule, an

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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967). Once plaintiff files a second amended complaint, the prior pleading no longer serves

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any function in the case. Therefore, in a second amended complaint, as in an original complaint,

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each claim and the involvement of each defendant must be sufficiently alleged.

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Finally, for the reasons discussed above, the court will deny plaintiff’s motion for

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preliminary injunctive relief. “The proper legal standard for preliminary injunctive relief requires

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a party to demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer

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irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,

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and that an injunction is in the public interest.’” Stormans v. Selecky, 571 F.3d 960, 978 (9th Cir.

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2009) (quoting Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008)). Here, plaintiff’s
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vague and conclusory allegations do not state a retaliation claim and fall short of making the

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showing required for the granting of preliminary injunctive relief. See Ivey v. Board of Regents,

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673 F.2d 266, 268 (9th Cir. 1982).1

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s amended complaint (Doc. No. 10) is dismissed;

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2. Plaintiff’s motion to amend (Doc. No. 12) is granted. Plaintiff is granted thirty days

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from the date of service of this order to file a second amended complaint that complies with the

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requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of

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Practice; the second amended complaint must bear the docket number assigned to this case and

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must be labeled “Second Amended Complaint”; failure to file a second amended complaint in

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accordance with this order will result in dismissal of this action without prejudice;
3. Plaintiff’s motion for preliminary injunctive relief (Doc. No. 12) is denied without

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prejudice; and
4. The Clerk of the Court is directed to send plaintiff the court’s form for filing a civil

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rights action.

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Dated: July 10, 2014

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DAD:9
shah0454.14am

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Plaintiff’s motion also does not comply with Local Rule 231, which requires that a motion for
preliminary injunctive relief be accompanied by: (1) a declaration signed under penalty of
perjury on the question of irreparable injury; (2) a memorandum of points and authorities
addressing all legal issues raised by the motion; and (3) evidence of notice to all persons who
would be affected by the order sought.
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