Weston et al v. De La Cruz et al

Filing 12

ORDER signed by Magistrate Judge Craig M. Kellison on 12/12/2016 ORDERING plaintiff Howze is DISMISSED from this action without prejudice; plaintiff Weston's 2 motion to proceed IFP is DENIED without prejudice; the Clerk shall send plaintiff a new ifp form; plaintiff Weston shall submit, within 30 days, a complete ifp application with the required certified trust account statement, or the appropriate filing fee; plaintiff's complaint is DISMISSED with leave to file and amended complaint within 30 days; and plaintiff Weston's failure to comply with this order will result in the dismissal of this action. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROCHELLE WESTON, et al.,

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No. 2:15-cv-0240-CMK-P

Plaintiffs,
vs.

ORDER

STELLA DE LA CRUZ, et. al.,
Defendants.
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Plaintiff Weston is a prisoner proceeding pro se in this civil rights action pursuant
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to 42 U.S.C. § 1983. It appears that plaintiff Weston has attempted to include her daughter,
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Cherelle Howze as a plaintiff in this action as well. However, Ms. Howze has not appeared on
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her own and she has not signed any of the documents submitted to the court. Pending before the
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court are plaintiff Weston’s application to proceed in forma pauperis and the complaint.
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There are a number of deficiencies in this case. First, plaintiff Weston’s
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application to proceed in forma pauperis is incomplete. A complete application to proceed in
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forma pauperis, along with a certified copy of his trust account statement for the six-month
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period immediately preceding the filing of the complaint, or the required filing fee, is required
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before this case could continue. See 28 U.S.C. §§ 1914(a), 1915(a), (a)(2). As plaintiff was a
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county jail inmate at the time of filing this action, plaintiff will be provided the opportunity to

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submit a new, completed application to proceed in forma pauperis or the appropriate filing fee.

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Plaintiff is warned that failure to resolve the fee status of this case within the time provided may

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result in the dismissal of this action for lack of prosecution and failure to comply with court rules

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and orders. See Local Rule 110.

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Second, proceeding with two plaintiffs who may or may not be incarcerated are

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not permitted by the rules of this court. It appears that plaintiff Weston is incarcerated and

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plaintiff Howze is not. The rules in this court concerning incarcerated litigants are materially

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different than the rules concerning persons who are not incarcerated. If both plaintiffs are

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incarcerated, in this court’s experience, an action brought by multiple inmate plaintiffs

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proceeding pro se presents procedural problems that cause delay and confusion. Delay often

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arises from the frequent transfer of inmates to other facilities or institutions, the changes in

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address that occur when inmates are released to parole, and the difficulties faced by inmates who

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attempt to communicate with each other and with unincarcerated individuals.

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Federal Rule of Civil Procedure 21 provides that “[o]n motion or on its own, the

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court may at any time, on just terms, add or drop a party.” Given the status of the plaintiffs in

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this action, the court finds it appropriate to drop a party from this action. As the complaint and

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all documents submitted to the court are signed only by plaintiff Weston, it is clear that she is the

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actual instigator of this action. Plaintiff Weston will be allowed to proceed in this action, but

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plaintiff Howze will be dismissed without prejudice to bringing her own action if that is her

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intent. To the extent plaintiff Weston is attempting to act on behalf of plaintiff Howze, such

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representation by a non-attorney is not permitted. “Although a non-attorney may appear in

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propria persona in his own behalf, that privilege is personal to him . . . [and she] has no authority

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to appear as an attorney for others than himself.” C.E. Pope Equity Trust v. United States, 818

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F.2d 696, 697 (9th Cir. 1987) (internal citations and quotations omitted).

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Finally, the court is required to screen complaints brought by prisoners seeking

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relief against a governmental entity or officer or employee of a governmental entity. See 28

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U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if it: (1) is frivolous

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or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary

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

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Moreover, the Federal Rules of Civil Procedure require that complaints contain a “. . . short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

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8(a)(2). This means that claims must be stated simply, concisely, and directly. See McHenry v.

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Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are

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satisfied if the complaint gives the defendant fair notice of the plaintiff’s claim and the grounds

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upon which it rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because plaintiff

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

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support the claims, vague and conclusory allegations fail to satisfy this standard. Additionally, it

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is impossible for the court to conduct the screening required by law when the allegations are

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vague and conclusory.

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Here, plaintiff’s complaint is unclear. It appears that plaintiff is upset with the

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charges brought against her, the treatment of her personal property by the Sheriff’s office, and her

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treatment while in jail. She claims her Eighth Amendment rights have been violated. She is

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requesting the charges against her be dropped, that she be released, and awarded monetary

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damages. However, she fails to allege who did what to her and how that activity would be a

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violation of her rights.

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To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual

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connection or link between the actions of the named defendants and the alleged deprivations.

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See Monell v. Dep’t 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). Vague and

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conclusory allegations concerning the involvement of official personnel in civil rights violations

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are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the

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plaintiff must set forth specific facts as to each individual defendant’s causal role in the alleged

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constitutional deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

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Plaintiff’s complaint is vague at best. She fails to allege sufficient facts for the

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court to determine whether she can state a claim for violation of her Eighth Amendment rights.

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The treatment a prisoner receives in prison and the conditions under which the prisoner is

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confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel and unusual

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punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 511 U.S.

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825, 832 (1994). The Eighth Amendment “embodies broad and idealistic concepts of dignity,

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civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976).

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Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. Chapman, 452

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U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with “food, clothing,

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shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080,

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1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when two

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requirements are met: (1) objectively, the official’s act or omission must be so serious such that it

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results in the denial of the minimal civilized measure of life’s necessities; and (2) subjectively,

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the prison official must have acted unnecessarily and wantonly for the purpose of inflicting harm.

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See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison official must

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have a “sufficiently culpable mind.” See id. Allegations of verbal harassment do not state a

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claim under the Eighth Amendment unless it is alleged that the harassment was “calculated to . . .

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cause [the prisoner] psychological damage.” Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th

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Cir. 1987); see also Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), amended by 135 F.3d

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1318 (9th Cir. 1998). In addition, the prisoner must show that the verbal comments were
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unusually gross, even for a prison setting, and that he was in fact psychologically damaged as a

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result of the comments. See Keenan, 83 F.3d at 1092. While it appears plaintiff is unhappy with

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her treatment, the only adverse treatment alleged is that she was harassed, which is insufficient to

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state a claim.

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In addition, to the extent she is attempting to challenge her incarceration, she

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cannot state a claim under 42 U.S.C. § 1983. When a state prisoner challenges the legality of his

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custody and the relief he seeks is a determination that he is entitled to an earlier or immediate

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release, such a challenge is not cognizable under 42 U.S.C. § 1983 and the prisoner’s sole federal

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remedy is a petition for a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500

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(1973); see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa

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Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (per curiam). Thus, where a § 1983 action seeking

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monetary damages or declaratory relief alleges constitutional violations which would necessarily

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imply the invalidity of the prisoner’s underlying conviction or sentence, or the result of a prison

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disciplinary hearing resulting in imposition of a sanction affecting the overall length of

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confinement, such a claim is not cognizable under § 1983 unless the conviction or sentence has

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first been invalidated on appeal, by habeas petition, or through some similar proceeding. See

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Heck v. Humphrey, 512 U.S. 477, 483-84 (1994) (concluding that § 1983 claim not cognizable

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because allegations were akin to malicious prosecution action which includes as an element a

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finding that the criminal proceeding was concluded in plaintiff’s favor); Butterfield v. Bail, 120

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F.3d 1023, 1024-25 (9th Cir. 1997) (concluding that § 1983 claim not cognizable because

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allegations of procedural defects were an attempt to challenge substantive result in parole

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hearing); cf. Neal, 131 F.3d at 824 (concluding that § 1983 claim was cognizable because

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challenge was to conditions for parole eligibility and not to any particular parole determination);

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cf. Wilkinson v. Dotson, 544 U.S. 74 (2005) (concluding that § 1983 action seeking changes in

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procedures for determining when an inmate is eligible for parole consideration not barred

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because changed procedures would hasten future parole consideration and not affect any earlier
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parole determination under the prior procedures).

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Because plaintiff’s complaint is vague and conclusory, the court cannot determine

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if plaintiff will be able to state a claim. However, it is possible that the deficiencies identified in

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this order may be cured by amending the complaint, so plaintiff will be granted leave to amend

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prior to dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131 (9th Cir.

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2000) (en banc). Plaintiff is informed that, as a general rule, an amended complaint supersedes

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the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Thus,

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following dismissal with leave to amend, all claims alleged in the original complaint which are

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not alleged in the amended complaint are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th

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Cir. 1987). Therefore, if plaintiff amends the complaint, the court cannot refer to the prior

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pleading in order to make plaintiff's amended complaint complete. See Local Rule 220. An

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amended complaint must be complete in itself without reference to any prior pleading. See id.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the

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conditions complained of have resulted in a deprivation of plaintiff’s constitutional rights. See

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Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d

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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Finally, plaintiff is warned that failure to file an amended complaint within the

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time provided in this order may be grounds for dismissal of this action. See Ferdik, 963 F.2d at

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1260-61; see also Local Rule 110. Plaintiff is also warned that a complaint which fails to comply

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with Rule 8 may, in the court’s discretion, be dismissed with prejudice pursuant to Rule 41(b).

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See Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff Howze is dismissed from this action without prejudice;

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Plaintiff Weston’s motion to proceed in forma pauperis (Doc. 2) is denied
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without prejudice;

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The Clerk of the Court is directed to send plaintiff Weston a new form

Application to Proceed In Forma Pauperis By a Prisoner;

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Plaintiff Weston shall submit on the form provided by the Clerk of the

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Court, within 30 days from the date of this order, a complete application for leave to proceed in

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forma pauperis, with the required certified copy of his trust account statement, or the appropriate

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filing fee;

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Plaintiffs’ complaint is dismissed with leave to amend;

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Plaintiff Weston shall file an amended complaint within 30 days of the

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date of service of this order; and

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Plaintiff Weston’s failure to comply with this order will result in the

dismissal of this action.

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DATED: December 12, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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