Gibbs v. Bradford et al

Filing 18

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/27/2018 DISMISSING 17 Amended Prisoner Civil Rights Complaint with leave to amend within 30 days. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH B. GIBBS,

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No. 2:16-cv-0544-EFB P

Plaintiff,
v.

ORDER

J.R. BRADFORD, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in this action brought pursuant to

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42 U.S.C. § 1983. His initial complaint was dismissed with leave to amend (ECF No. 7) and he

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has now filed an amended complaint (ECF No. 17), which the court must screen.
Screening

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I.

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Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the

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allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on

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which relief may be granted, or seeks monetary relief against an immune defendant.

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Legal Standards

Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519,

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520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it

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fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41
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(1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff's obligation to provide the ‘grounds’ of

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his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of

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a cause of action's elements will not do. Factual allegations must be enough to raise a right to

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relief above the speculative level on the assumption that all of the complaint's allegations are

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true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable

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legal theories or the lack of pleading sufficient facts to support cognizable legal theories.

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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In reviewing a complaint under this standard, the court must accept as true the allegations
of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740

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(1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in

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the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must

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satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule

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8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the

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pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the

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grounds upon which it rests.” Twombly, 550 U.S. at 562-563 (2007).

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II.

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Plaintiff alleges that, in 2013 and while incarcerated at Pelican Bay State Prison (“Pelican

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Bay”), he ran afoul of prison authorities at that institution by filing grievances related to his

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confinement to administrative segregation. ECF No. 17 at 6. He alleges that those unnamed

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officials engineered his transfer to California State Prison, Sacramento (“CSP-Sac”) shortly

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thereafter.1 Id.

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Shortly after his arrival at CSP-Sac, plaintiff claims that defendant Advincula learned that

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he had pending suits against prison officials at Pelican Bay. Id. at 8-9. In retaliation, Advincula

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orchestrated the cancellation of plaintiff’s priority legal use status for the prison library. Id. at 9.

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/////

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Plaintiff describes a scheme by which medical staff at Pelican Bay falsely diagnosed him
with a heart problem in order to accomplish his transfer to CSP-Sac. ECF No. 17 at 7. These
allegations appear to be offered merely as background to the other claims in the complaint,
however.
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Plaintiff then goes on to describe numerous, loosely related incidents of retaliation which are

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ostensibly offered as a campaign of retaliation:

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

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On January 13, 2013, defendants Bradford and Casto denied plaintiff access to the law
library (id. at 9);

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On January 18, 2013, defendant Advincula told him his library “ducat” had been cancelled

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and subsequently rebuffed his attempts to enter the library, telling him that an incident on

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the yard necessitated its closure that day (id. at 10);

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

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Defendant Bradford denied plaintiff access to the law library on an unspecified date in
retaliation for plaintiff’s filing of grievances (id.);

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Defendant Advincula, on an unspecified date, referred plaintiff to Defendant Waddle for a

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psychological evaluation and placement on suicide watch in order to restrict his access to

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the law library (id. at 10-11);

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

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to suicide watch in order to deny him access to the library (id. at 12-13);
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On December 27, 2013, defendants Waddle, Advincula, and Cross again referred plaintiff

On January 11, 2014, defendant Bradford refused to send plaintiff a prison library “ducat”
(id. at 13-14);

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On February 6, 2014 defendant Bradford became upset with plaintiff after he “used the

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big dest (sic) to staple his copies” and had him removed from the prison library (id. at 14);

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and

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On February 7, 2014, as a result of the incident the previous day, defendant Aubert turned

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plaintiff away from the law library on Bradford’s orders (id.);

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The federal rules of civil procedure provide that claims against multiple defendants must

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arise from the same transaction, occurrence, or series of transactions or occurrences. Fed. R. Civ.

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P. 20. “[T]he same transaction or occurrence requirement ‘refers to similarity in the factual

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background of a claim.’” Fid. Nat. Title Co. v. U.S. Small Bus. Admin., No. 2:13-CV-02030-

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KJM-AC, 2014 U.S. Dist. LEXIS 65380, 2014 WL 1883939, at *8 (E.D. Cal. May 12, 2014)

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(quoting Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997)). Claims that “arise out of a

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systematic pattern of events” and “have [a] very definite logical relationship” arise from the same
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transaction or occurrence. Bautista v. Los Angeles Cnty., 216 F.3d 837, 842-43 (9th Cir. 2000)

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(internal quotations omitted). Not all of plaintiff’s retaliation claims adhere to this standard. For

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instance, he alleges that defendant Advincula undertook to retaliate against him after learning of

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his previously filed lawsuits against officials at Pelican Bay. By contrast, defendant Bradford

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allegedly barred him from the library on two separate occasions for different retaliatory reasons –

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once because he had filed grievances and once because his conduct in the library angered her.

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Moreover, the retaliatory incidents at issue here occurred over a lengthy temporal period –

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approximately a year – and involve radically different facts. Whether plaintiff was barred from

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the library on a specified date is an entirely separate factual determination from whether he was

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referred for retaliatory psychological evaluations on different dates. Thus, the court concludes

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that his claims, as currently presented, are insufficiently related to proceed in a single suit. He will

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be granted a final opportunity to amend.

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Leave to Amend

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Plaintiff is cautioned that any amended complaint must identify as a defendant only

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persons who personally participated in a substantial way in depriving him of his constitutional

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rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the

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deprivation of a constitutional right if he does an act, participates in another’s act or omits to

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perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also

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include any allegations based on state law that are so closely related to his federal allegations that

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“they form the same case or controversy.” See 28 U.S.C. § 1367(a).

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The amended complaint must also contain a caption including the names of all defendants.
Fed. R. Civ. P. 10(a).
Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See

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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). And, as explain above, he may not join

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unrelated claims against multiple defendants. Id.

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Any amended complaint must be written or typed so that it is complete in itself without

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reference to any earlier filed complaint. E.D. Cal. L.R. 220. An amended complaint supersedes

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

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1997) (the “‘amended complaint supersedes the original, the latter being treated thereafter as non-

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existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)).

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Any amended complaint should be as concise in fulfilling the above requirements. Fed.

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R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual background which

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has no bearing on his legal claims. He should also take pains to ensure that his amended

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complaint is as legible as possible. This refers not only to penmanship, but also spacing and

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organization. Plaintiff should carefully consider whether each of the defendants he names

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actually had involvement in the constitutional violations he alleges. A scattershot approach in

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which plaintiff names dozens of defendants will not be looked upon favorably by the court.

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Conclusion
Accordingly, it is ORDERED that plaintiff’s amended complaint (ECF No. 17) is

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DISMISSED with leave to amend within thirty days. Any amended complaint must bear the

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docket number assigned to this case and be titled “Second Amended Complaint.” Failure to

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comply with this order will result in dismissal of this action for failure to prosecute. If plaintiff

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files an amended complaint stating a cognizable claim the court will proceed with service of

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process by the United States Marshal.

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DATED: November 27, 2018.

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