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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID W. WILSON, 12 Plaintiff, 13 14 No. 2:15-cv-2108 MCE DB P v. ORDER ROBERT W. FOX, et al., 15 Defendants. 16 Plaintiff David W. Wilson is a state prisoner proceeding without counsel in an action 17 18 brought under 42 U.S.C. § 1983. Previously, this action was dismissed after it was determined 19 that plaintiff is not entitled to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g), and the 20 imminent danger exception does not apply. (ECF Nos. 7, 11.) The Ninth Circuit Court of Appeals 21 reversed the dismissal order on the ground that plaintiff adequately alleged imminent danger of 22 serious physical injury. (ECF No. 15.) Accordingly, plaintiff’s pending motion to proceed in 23 forma pauperis will be granted. Plaintiff’s complaint is now before the court for screening. 24 I. 25 Screening Requirement The in forma pauperis statute provides, “Notwithstanding any filing fee, or any portion 26 thereof, that may have been paid, the court shall dismiss the case at any time if the court 27 determines that . . . the action or appeal . . . fails to state a claim upon which relief may be 28 granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 1 1 II. Pleading Standard Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or 2 3 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. 4 Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of 5 substantive rights, but merely provides a method for vindicating federal rights conferred 6 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). 7 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a 8 right secured by the Constitution or laws of the United States was violated and (2) that the alleged 9 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 10 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). 11 A complaint must contain “a short and plain statement of the claim showing that the 12 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 13 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 14 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 15 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 16 matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial 17 plausibility demands more than the mere possibility that a defendant committed misconduct and, 18 while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78. 19 III. Plaintiff’s Allegations 20 At all times relevant to this action, plaintiff was a state inmate housed at California 21 Medical Facility (“CMF”) in Vacaville, California. He names as defendants CMF Warden Robert 22 Fox; Lt. E. Corr; Sergeants Carpe, T. Richardson, G. Warden, Thomas, Blueford, and Jenkins; 23 Counselors J. Tennant and Vaden; Assistant Food Manager C. Walker; Supervising Cooks Sam 24 Garcia, McMasters, Lam Dang, and J. Terrell; Cooks Coffey, Pabalao, Fessler, Tate, G. 25 Huntawarden, Bundy, Burgess, Tan, S. Sylvester, J.R. McCllum, and Heinz; Personal Officer T. 26 Martinez-Long; Dietician Tiffany Peralta; Correctional Officer G. Brown; Appeals Examiner D. 27 Artis; Chief of Appeals J.D. Lozano, J.A. Zamora, R.L. Briggs, M. Voong; Psychologist Dr. 28 Valassopous; and Psychiatrist C. Kaw. 2 Plaintiff’s complaint is long, rambling, and difficult to decipher. As best as the court can 1 2 determine, plaintiff asserts a number of unrelated claims spanning a 16-month period. Some of 3 these claims include (1) a violation of his equal protection rights based on the intervals between 4 inmates’ release from their cells for toilet use and access to institutional programs; (2) an Eighth 5 Amendment conditions of confinement claim based on defendants’ failure to implement cooling 6 measures for excessive heat in the summer season; (3) a conditions of confinement claim based 7 on the use of cage showers and the existence of mold in those showers; (4) limitations on yard 8 access activities; (5) “prior appeal equal access, for [California Medical Facility] has not done 9 program evaluations and receives federal funds for School/Yard”; (6) Sgt. Warren improperly 10 denied plaintiff’s lunch yard access; (7) a conditions of confinement claim based on the 11 defendants’ use of fans in the chow halls during the winter months to rush them out and also 12 based on the chow hall workers’ various hygiene violations; and (8) injunctive relief for a medical 13 chrono limiting his exposure to the dayroom, which plaintiff contends is stressful for him. 14 15 Plaintiff seeks injunctive relief and damages. IV. Discussion 16 Plaintiff’s assertion of a number of unrelated claims against 36 defendants violates 17 Federal Rule of Civil Procedure 20(a)(2), which permits a plaintiff to sue multiple defendants in 18 the same action only if “any right to relief is asserted against them jointly, severally, or in the 19 alternative with respect to or arising out of the same transaction, occurrence, or series of 20 transactions or occurrences,” and there is a “question of law or fact common to all defendants.” 21 “Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not 22 be joined with unrelated Claim B against Defendant 2. Unrelated claims against different 23 defendants belong in different suits ...” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (citing 24 28 U.S.C. § 1915(g)). Since plaintiff’s claims do not appear to arise out of the same transaction or 25 involve common questions of law or fact, the complaint will be dismissed with leave to amend. 26 If plaintiff elects to amend his complaint, plaintiff shall choose which claims he wishes to 27 pursue in this action. If plaintiff does not do so and his amended complaint again sets forth 28 //// 3 1 unrelated claims that violate joinder rules, the court may recommend dismissal of this action for 2 failure to comply with court orders. 3 V. Conclusion 4 Plaintiff’s complaint contains unrelated claims against different defendants in violation of 5 Federal Rule of Civil Procedure 20(a)(2). The court will grant plaintiff an opportunity to file an 6 amended complaint. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff is again 7 advised that, if he chooses to amend, he may only allege claims that (a) arise out of the same 8 transaction, occurrence, or series of transactions or occurrences, and (b) present questions of law 9 or fact common to all defendants named therein. Fed. R. Civ. P. 20(a)(2). Plaintiff must file 10 individual actions for unrelated claims against unrelated defendants. 11 If plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a 12 deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth 13 “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting 14 Twombly, 550 U.S. at 555 (2007)). Plaintiff must also demonstrate that each named defendant 15 personally participated in a deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th 16 Cir. 2002). 17 Plaintiff should note that although he has been given the opportunity to amend, it is not for 18 the purposes of adding new claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff 19 should carefully read this Screening Order and focus his efforts on curing the deficiencies set 20 forth above. 21 Finally, plaintiff is advised that Local Rule 220 requires that an amended complaint be 22 complete in itself without reference to any prior pleading. As a general rule, an amended 23 complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). 24 Once an amended complaint is filed, the original complaint no longer serves any function in the 25 case. Therefore, in an amended complaint, as in an original complaint, each claim and the 26 involvement of each defendant must be sufficiently alleged. The amended complaint should be 27 clearly and boldly titled “First Amended Complaint,” refer to the appropriate case number, and be 28 an original signed under penalty of perjury. Plaintiff's amended complaint should be brief. Fed. R. 4 1 Civ. P. 8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a 2 right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted. 5 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 6 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 7 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 8 Director of the California Department of Corrections and Rehabilitation filed concurrently 9 herewith. 10 3. Plaintiff’s complaint is dismissed. 11 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 12 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 13 Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number 14 assigned this case and must be labeled “Amended Complaint”; plaintiff must file an original and 15 two copies of the amended complaint; failure to file an amended complaint in accordance with 16 this order will result in a recommendation that this action be dismissed. 17 Dated: June 7, 2017 18 19 20 21 22 /DLB7; DB/Inbox/Substantive/wils2108.scrn 23 24 25 26 27 28 5

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