Wilson v. Fox et al.

Filing 21

ORDER signed by Magistrate Judge Deborah Barnes on 6/7/2017 GRANTING plaintiff's 2 request to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. Plaintiff's 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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DAVID W. WILSON,

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Plaintiff,

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No. 2:15-cv-2108 MCE DB P

v.

ORDER

ROBERT W. FOX, et al.,

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Defendants.

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Plaintiff David W. Wilson is a state prisoner proceeding without counsel in an action

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brought under 42 U.S.C. § 1983. Previously, this action was dismissed after it was determined

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that plaintiff is not entitled to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g), and the

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imminent danger exception does not apply. (ECF Nos. 7, 11.) The Ninth Circuit Court of Appeals

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reversed the dismissal order on the ground that plaintiff adequately alleged imminent danger of

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serious physical injury. (ECF No. 15.) Accordingly, plaintiff’s pending motion to proceed in

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forma pauperis will be granted. Plaintiff’s complaint is now before the court for screening.

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I.

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Screening Requirement
The in forma pauperis statute provides, “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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II.

Pleading Standard
Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or

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immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.

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Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights conferred

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elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

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To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a

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right secured by the Constitution or laws of the United States was violated and (2) that the alleged

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

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matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial

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plausibility demands more than the mere possibility that a defendant committed misconduct and,

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while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

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III.

Plaintiff’s Allegations

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At all times relevant to this action, plaintiff was a state inmate housed at California

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Medical Facility (“CMF”) in Vacaville, California. He names as defendants CMF Warden Robert

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Fox; Lt. E. Corr; Sergeants Carpe, T. Richardson, G. Warden, Thomas, Blueford, and Jenkins;

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Counselors J. Tennant and Vaden; Assistant Food Manager C. Walker; Supervising Cooks Sam

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Garcia, McMasters, Lam Dang, and J. Terrell; Cooks Coffey, Pabalao, Fessler, Tate, G.

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Huntawarden, Bundy, Burgess, Tan, S. Sylvester, J.R. McCllum, and Heinz; Personal Officer T.

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Martinez-Long; Dietician Tiffany Peralta; Correctional Officer G. Brown; Appeals Examiner D.

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Artis; Chief of Appeals J.D. Lozano, J.A. Zamora, R.L. Briggs, M. Voong; Psychologist Dr.

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Valassopous; and Psychiatrist C. Kaw.
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Plaintiff’s complaint is long, rambling, and difficult to decipher. As best as the court can

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determine, plaintiff asserts a number of unrelated claims spanning a 16-month period. Some of

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these claims include (1) a violation of his equal protection rights based on the intervals between

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inmates’ release from their cells for toilet use and access to institutional programs; (2) an Eighth

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Amendment conditions of confinement claim based on defendants’ failure to implement cooling

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measures for excessive heat in the summer season; (3) a conditions of confinement claim based

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on the use of cage showers and the existence of mold in those showers; (4) limitations on yard

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access activities; (5) “prior appeal equal access, for [California Medical Facility] has not done

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program evaluations and receives federal funds for School/Yard”; (6) Sgt. Warren improperly

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denied plaintiff’s lunch yard access; (7) a conditions of confinement claim based on the

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defendants’ use of fans in the chow halls during the winter months to rush them out and also

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based on the chow hall workers’ various hygiene violations; and (8) injunctive relief for a medical

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chrono limiting his exposure to the dayroom, which plaintiff contends is stressful for him.

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Plaintiff seeks injunctive relief and damages.
IV.

Discussion

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Plaintiff’s assertion of a number of unrelated claims against 36 defendants violates

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Federal Rule of Civil Procedure 20(a)(2), which permits a plaintiff to sue multiple defendants in

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the same action only if “any right to relief is asserted against them jointly, severally, or in the

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alternative with respect to or arising out of the same transaction, occurrence, or series of

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transactions or occurrences,” and there is a “question of law or fact common to all defendants.”

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“Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not

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be joined with unrelated Claim B against Defendant 2. Unrelated claims against different

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defendants belong in different suits ...” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (citing

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28 U.S.C. § 1915(g)). Since plaintiff’s claims do not appear to arise out of the same transaction or

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involve common questions of law or fact, the complaint will be dismissed with leave to amend.

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If plaintiff elects to amend his complaint, plaintiff shall choose which claims he wishes to

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pursue in this action. If plaintiff does not do so and his amended complaint again sets forth

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unrelated claims that violate joinder rules, the court may recommend dismissal of this action for

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failure to comply with court orders.

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V.

Conclusion

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Plaintiff’s complaint contains unrelated claims against different defendants in violation of

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Federal Rule of Civil Procedure 20(a)(2). The court will grant plaintiff an opportunity to file an

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amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is again

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advised that, if he chooses to amend, he may only allege claims that (a) arise out of the same

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transaction, occurrence, or series of transactions or occurrences, and (b) present questions of law

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or fact common to all defendants named therein. Fed. R. Civ. P. 20(a)(2). Plaintiff must file

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individual actions for unrelated claims against unrelated defendants.

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If plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a

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deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth

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“sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting

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Twombly, 550 U.S. at 555 (2007)). Plaintiff must also demonstrate that each named defendant

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personally participated in a deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th

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Cir. 2002).

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Plaintiff should note that although he has been given the opportunity to amend, it is not for

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the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff

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should carefully read this Screening Order and focus his efforts on curing the deficiencies set

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forth above.

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Finally, plaintiff is advised that Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. As a general rule, an amended

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complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

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Once an amended complaint is filed, the original complaint no longer serves any function in the

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case. Therefore, in an amended complaint, as in an original complaint, each claim and the

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involvement of each defendant must be sufficiently alleged. The amended complaint should be

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clearly and boldly titled “First Amended Complaint,” refer to the appropriate case number, and be

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an original signed under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R.
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Civ. P. 8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a

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right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted).

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Accordingly, IT IS HEREBY ORDERED that:

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

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. §

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1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number

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assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and

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two copies of the amended complaint; failure to file an amended complaint in accordance with

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this order will result in a recommendation that this action be dismissed.

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Dated: June 7, 2017

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/DLB7;
DB/Inbox/Substantive/wils2108.scrn

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