Canada v. Macomber

Filing 8

ORDER signed by Magistrate Judge Edmund F. Brennan on 03/23/17 granting 5 Motion to Proceed IFP. Plaintiff shall pay the statutory filing fee of $350.00 for this action. All fees shall be collected in accordance with the court's CDC order filed concurrently herewith. The complaint is dismissed with leave to amend within 30 days. (Plummer, M)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 RONALD LEE CANADA, 11 Plaintiff, 12 13 v. J. MACOMBER, Warden, 14 No. 2:15-cv-1352-EFB P ORDER GRANTING IFP AND DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. § 1915A Defendant. 15 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 16 17 U.S.C. § 1983. He has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. 18 § 1915. 19 I. Request to Proceed In Forma Pauperis Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). 20 21 Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect 22 and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. 23 § 1915(b)(1) and (2). 24 II. Screening Requirement and Standards 25 Federal courts must engage in a preliminary screening of cases in which prisoners seek 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 28 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 1 1 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 2 relief.” Id. § 1915A(b). 3 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 4 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 5 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 6 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 8 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 9 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 10 U.S. 662, 679 (2009). 11 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 12 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 13 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 14 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 15 678. 16 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 17 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 18 content that allows the court to draw the reasonable inference that the defendant is liable for the 19 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 20 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 21 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 22 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 23 III. 24 25 26 27 28 Screening Order The court has reviewed plaintiff’s complaint (ECF No. 1) pursuant to § 1915A and finds that the allegations are too vague and conclusory to state a cognizable claim for relief.1 The 1 Plaintiff subsequently submitted several “amended complaints.” ECF Nos. 6, 7. Those complaints failed to comply with Local Rule 133(g), which requires that all filings include the file number of the action. For this reason, and because it is not clear whether plaintiff intended for those complaints to be filed in this action, or in another action he is litigating, those complaints 2 1 complaint names Warden Macomber as the sole defendant, and alleges that plaintiff’s visitation 2 rights were restricted because he filed complaints. Plaintiff alleges that he informed Warden 3 Macomber about the restriction on his visitation rights and that Macomber did nothing to correct 4 the problem. 5 Plaintiff has not pleaded sufficient facts to state a proper claim for relief. Although the 6 Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the 7 elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 8 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts 9 which defendants engaged in that support plaintiff's claim. Id. Because plaintiff fails to state a 10 claim for relief, the complaint must be dismissed. 11 To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal 12 constitutional or statutory right; and (2) that the violation was committed by a person acting under 13 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 14 930, 934 (9th Cir. 2002). 15 An individual defendant is not liable on a civil rights claim unless the facts establish the 16 defendant’s personal involvement in the constitutional deprivation or a causal connection between 17 the defendant’s wrongful conduct and the alleged constitutional deprivation. See Hansen v. 18 Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). 19 Plaintiff may not sue any official – such as Warden Macomber -- on the theory that the official is 20 liable for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 21 679 (2009). Plaintiff must identify the particular person or persons who violated his rights. He 22 must also plead facts showing how that particular person was involved in the alleged violation. 23 To state a claim for violation of the right to procedural due process, plaintiff must allege 24 facts showing: “(1) a deprivation of a constitutionally protected liberty or property interest, and 25 (2) a denial of adequate procedural protections.” Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 26 2003). State regulations may create a liberty interest in avoiding restrictive conditions of 27 28 will be disregarded. 3 1 confinement if those conditions “present a dramatic departure from the basic conditions of [the 2 inmate’s] sentence.” Sandin v. Conner, 515 U.S. 472, 485 (1995). Inmates do not have a 3 constitutional right to contact visits. Block v. Rutherford, 468 U.S. 576, 586 (1984). 4 To state a viable First Amendment retaliation claim, a prisoner must allege five elements: 5 “(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) 6 that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 7 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 8 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). Conduct protected by the First 9 Amendment includes communications that are “part of the grievance process.” Brodheim v. Cry, 10 584 F.3d 1262, 1271 n.4 (9th Cir. 2009). If plaintiff intends to assert a retaliation claim, he must 11 specifically identify the protected conduct at issue, name the defendant who took adverse action 12 against him, and plead that the allegedly adverse action was taken “because of” plaintiff’s 13 protected conduct. 14 Plaintiff will be granted leave to file an amended complaint, if he can allege a cognizable 15 legal theory against a proper defendant and sufficient facts in support of that cognizable legal 16 theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must 17 afford pro se litigants an opportunity to amend to correct any deficiency in their complaints). 18 Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set 19 forth the claims and allegations against each defendant. Any amended complaint must cure the 20 deficiencies identified above and also adhere to the following requirements: 21 Any amended complaint must identify as a defendant only persons who personally 22 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 23 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 24 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 25 legally required to do that causes the alleged deprivation). 26 It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 27 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George 28 v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 4 1 Any amended complaint must be written or typed so that it so that it is complete in itself 2 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 3 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 4 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 5 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 6 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 7 1967)). 8 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 9 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 10 See E.D. Cal. Local Rule 110. 11 IV. 12 Summary of Order Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 5) is granted. 14 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 15 16 in accordance with the notice to the CDCR filed concurrently herewith. 3. The complaint is dismissed with leave to amend within 30 days. The complaint 17 must bear the docket number assigned to this case and be titled “Amended 18 Complaint.” Failure to comply with this order will result in dismissal of this 19 action for failure to prosecute. If plaintiff files an amended complaint stating a 20 cognizable claim the court will proceed with service of process by the United 21 States Marshal. 22 Dated: March 23, 2017. 23 24 25 26 27 28 5

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