Sanchez v. Foulk

Filing 5

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/6/2015 GRANTING plaintiff's 2 request to proceed IFP; plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order; the complaint is DISMISSED with leave to file an amended complaint within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESUS SANCHEZ,

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Plaintiff,

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No. 2:14-cv-0868-EFB P

v.

ORDER GRANTING IFP AND DISMISSING
COMPLAINT WITH LEAVE TO AMEND

F. FOULK,

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Defendant.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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

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forma pauperis.

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I.

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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Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 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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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

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of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include 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 Atl. Corp. v.

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

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While the complaint must comply with the “short and plain statement” requirements of Rule 8, its

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allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 129 S.

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Ct. 1937, 1949 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal,

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129 S. Ct. at 1949.

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Furthermore, a claim upon which the court can grant relief must have 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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III.

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Screening Order
Plaintiff alleges that his due process rights were violated when he was charged and found

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guilty of participating in a mass hunger strike. He claims he was not a participant in the hunger

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strike and that he could not have been guilty of disobeying an order because he was never actually
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ordered to eat. He requests that the rules violation report be revoked and that his lost credits be

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restored. See ECF No. 1. As explained below, plaintiff fails to state a due process claim, and the

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complaint will therefore be dismissed with leave to amend. To proceed, plaintiff must file an

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amended complaint.

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In order to state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal

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

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the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

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930, 934 (9th Cir. 2002).

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An individual defendant is not liable on a civil rights claim unless the facts establish the

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defendant’s personal involvement in the constitutional deprivation or a causal connection between

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the defendant’s wrongful conduct and the alleged constitutional deprivation. See Hansen v.

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Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

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That is, plaintiff may not sue any official on the theory that the official is liable for the

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unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948

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(2009). Because respondeat superior liability is inapplicable to § 1983 suits, “a plaintiff must

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plead that each Government-official defendant, through the official’s own individual actions, has

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violated the Constitution.” Id. It is plaintiff’s responsibility to allege facts to state a plausible

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claim for relief. Iqbal, 129 S. Ct. at 1949; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.

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2009).

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In the context of a disciplinary proceeding where a liberty interest is at stake, due process

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requires that “some evidence” support the disciplinary decision. Superintendent v. Hill, 472 U.S.

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445, 455 (1985). The inmate must also receive: “(1) advance written notice of the disciplinary

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charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to

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call witnesses and present documentary evidence in his defense; and (3) a written statement by

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the factfinder of the evidence relied on and the reasons for the disciplinary action.” Id. at 454

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(citing Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974).

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Plaintiff concedes that he received advanced written notice of the charges against him, and

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his attachment of the hearing decision to his complaint shows that he received a written statement
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by the factfinder of the evidence relied on and the reasons for the disciplinary action. ECF No. 1

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at 10. It also appears from the complaint that “some evidence” supported the determination that

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plaintiff was guilty of participating in a mass hunger strike, as Sergeant D. Qualls provided a

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statement that plaintiff had refused to accept his ninth consecutive meal, along with many other

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inmates. See ECF No. 1 at 17. It is not clear from the complaint whether the remaining due

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process requirements set forth in Wolff were met, and for that reason, plaintiff will be granted

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leave to amend.

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It is unclear whether plaintiff can allege a cognizable legal theory against a proper

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defendant and sufficient facts in support of that cognizable legal theory. Lopez v. Smith, 203 F.3d

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1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an opportunity

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to amend to correct any deficiency in their complaints). He will be granted leave to file an

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amended complaint that attempts to do so. Should plaintiff choose to file an amended complaint,

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it 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).

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It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a).

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Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
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)).

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Finally, the court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See Local Rule 110.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis (ECF No. 2) is granted.

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2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in

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accordance with the notice to the California Department of Corrections and Rehabilitation filed

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concurrently herewith.
3. 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 dismissal of this action for failure to

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state a claim. If plaintiff files an amended complaint stating a cognizable claim the court will

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proceed with service of process by the United States Marshal.

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Dated: April 6, 2015.

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