Eckstrom v. Hoshino

Filing 20

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/05/17 ORDERING the amended complaint 17 is DISMISSED with leave to amend within 30 days. Plaintiff's motion for the court to consider exhibits 19 is DENIED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARL ECKSTROM,

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Plaintiff,

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No. 2:16-cv-0538-MCE-EFB P

v.

ORDER

MARTIN HOSHINO,

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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. After a dismissal pursuant to 28 U.S.C. § 1915A, he has filed an amended

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complaint along with a memorandum and a motion for the court to consider the exhibits filed

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with the original complaint. ECF Nos. 17, 18, 19.

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I.

Screening Requirements 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 plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

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U.S. 662, 679 (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.” Iqbal, 556 U.S. at

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678.

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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, 556 U.S. at 678. 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, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

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plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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II.

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Screening Order1
Plaintiff claims that, since 1991, he has sought protective housing to avoid being

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murdered by members of the Mexican Mafia. ECF No. 1 at 7, 9. He alleges that at every

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classification committee review since 1991, he has requested that the committee members look

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Plaintiff’s motion for the court to consider the exhibits filed with his original complaint
(ECF No. 19) is denied. Plaintiff may not supplement his complaint in a piecemeal fashion by
filing separate documents that are intended to be read together as a single complaint. If plaintiff
wishes to add, omit, or correct information in the operative complaint, he must file an amended or
supplemental complaint that is complete within itself. See E.D. Cal. L.R. 220.
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deep into his central file and take note of his documented enemy concerns from the 1970s and

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1980s. Id. at 10-14. He disputes the results of a 1991 investigation into his security needs, which

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determined that he had none. Id. at 14-15. According to plaintiff, he is currently safe but could

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be returned to the main line at any time, where his life would be in danger based upon his, now

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decades-old, enemy concerns. Id. at 8-9, 16. Custody staff purportedly tell treatment staff that

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plaintiff’s concerns about the Mexican Mafia are “delusions.” Id. at 16. Plaintiff asserts a

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violation of his rights under the Eighth Amendment. Id. at 24.

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However, the only defendant listed in the complaint is Martin Hoshino, CDCR

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Undersecretary, who allegedly directed staff to respond to plaintiff’s letters/administrative

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appeals. Id. at 9, 18, 20. The complaint does not show how defendant Hoshino personally

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violated plaintiff’s Eighth Amendment rights. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (a

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

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conduct of his or her subordinates). Moreover, plaintiff’s dissatisfaction with the responses to his

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administrative appeals does not establish a constitutional violation, as there is no constitutional

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right to a state prison grievance system. See Ramirez v. Galaza, 334 F.3d 850, 860-61 (9th Cir.

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2003). Thus, plaintiff’s allegations are not sufficient to state a claim upon which relief could be

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granted.

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Under the Eighth Amendment, “prison officials have a duty to protect prisoners from

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violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal

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quotation marks, ellipsis, and citation omitted). The relevant inquiry is whether prison officials,

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“acting with deliberate indifference, exposed a prisoner to a sufficiently substantial risk of serious

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damage to his future health.” Id. at 834 (internal quotation omitted). A defendant is deliberately

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indifferent if he knows that the plaintiff faces “a substantial risk of serious harm and disregards

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that risk by failing to take reasonable measures to abate it.” Id. at 847. Plaintiff has not shown

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how any particular defendant was deliberately indifferent to a substantial risk of serious harm to

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him.

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The court also notes that plaintiff’s claim may be barred by the statute of limitations. The
applicable statute of limitations starts to run when a plaintiff knows or has reason to know of the
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injury that is the basis of his action – typically the date on which the injury actually occurs. See

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Ward v. Westinghouse Can., 32 F.3d 1405, 1407 (9th Cir. Cal. 1994); Douglas v. Noelle, 567

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F.3d 1103, 1109 (9th Cir. 2009). Actions arising under section 1983 look to the forum state’s

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statute of limitations. Wallace v. Kato, 549 U.S. 384, 387 (2007). In California the statute of

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limitations for personal injury actions is two years. Cal. Civ. Proc. Code § 335.1. The California

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Code of Civil Procedure provides that this limitation period is subject to two year tolling for

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prisoners who are serving less than a life sentence. Cal. Civ. Proc. Code § 352.1(a). And

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California courts have read out the “less than life” limitation. See Jones v. Blanas, 393 F.3d 918,

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928 n.5 (9th Cir. 2004). Accordingly, plaintiff had four years from the day his injuries accrued to

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bring this suit. Plaintiff’s injury appears to have accrued back in 1991, when an investigation

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revealed he had no security concerns, well in excess of four years before this action was

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commenced in 2016. ECF No. 17. Nonetheless, plaintiff will be permitted leave to amend in the

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event that he might be able to plead facts demonstrating that his claim is not timebarred.

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III.

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Leave to Amend
Plaintiff will be afforded an opportunity to file an amended complaint to see if he can state

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a cognizable claim. If plaintiff chooses to file an amended complaint it should observe the

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following:

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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

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that it so that it is complete in itself without reference to any earlier filed complaint. E.D. Cal.

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L.R. 220. This is because an amended complaint supersedes any earlier filed complaint, and once

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an amended complaint is filed, the earlier filed complaint no longer serves any function in the
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case. See Forsyth v. Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint

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supersedes the original, the latter being treated thereafter as non-existent.’”) (quoting Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967)).

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Finally, the court notes that any amended complaint should be as concise as possible in

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fulfilling the above requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of

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procedural or factual background which has no bearing on his legal claims. He should also take

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pains to ensure that his amended complaint is as legible as possible. This refers not only to

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penmanship, but also spacing and organization. Lengthy, unbroken paragraphs can be difficult to

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read when handwritten and plaintiff would do well to avoid them wherever possible.

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IV.

Conclusion
Accordingly, IT IS HEREBY ORDERED that the amended complaint (ECF No. 17) is

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dismissed with leave to amend within 30 days. The complaint must bear the docket number

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assigned to this case and be titled “Second Amended Complaint.” Failure to comply with this

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order may result in a recommendation of dismissal. If plaintiff files an amended complaint

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stating a cognizable claim the court will proceed with service of process by the United States

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Marshal. IT IS FURTHER ORDERED that plaintiff’s motion for the court to consider exhibits

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(ECF No. 19) is denied.

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Dated: October 5, 2017.

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