Gibbs v. Bradford et al

Filing 7

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/03/17 GRANTING 2 Motion to Proceed IFP and DENYING 5 Plaintiff's request that this action be reassigned to Judge Claire. 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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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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Plaintiff,

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

v.
J. R. BRADFORD, et al.,

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ORDER GRANTING IFP AND DISMISSING
COMPLAINT PURSUANT TO 28 U.S.C. §
1915A

Defendants.

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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. He has filed an application to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915 and a request that this case be reassigned to United States Magistrate Judge Allison Claire.

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I.

Request to Proceed In Forma Pauperis
Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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II.

Screening Requirement 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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III.

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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
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Plaintiff raised similar allegations in an action that was assigned to Magistrate Judge
Claire. See Case No. 2:14-cv-0831-TLN-AC. While still in the screening stage, plaintiff
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complaint names Bradford, Casto, Waddle, Advincula, Cross, and Aubert as defendants. The

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intended claims for relief are for retaliation and denial of access to courts in violation of the First

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Amendment. Under the standards discussed below, plaintiff has not pleaded sufficient facts to

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state a proper claim for relief. Although the Federal Rules adopt a flexible pleading policy, a

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complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones

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v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at

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least some degree of particularity overt acts which defendants engaged in that support plaintiff’s

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claim. Id. Because plaintiff fails to state a claim for relief, the complaint must be dismissed.

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Plaintiff will be granted leave to file an amended complaint, if he can allege a cognizable

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legal theory against a proper defendant and sufficient facts in support of that cognizable legal

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theory. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must

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afford pro se litigants an opportunity to amend to correct any deficiency in their complaints).

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Should plaintiff choose to file an amended complaint, the amended complaint shall clearly set

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forth the claims and allegations against each defendant. Any amended complaint must cure the

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deficiencies identified above and also adhere to the following requirements:

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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 that it so that it is complete in itself
without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended
voluntarily dismissed that action. Id., ECF No. 28. Plaintiff now requests that this action be
reassigned to Judge Claire. ECF No. 5. He does not explain why he seeks such reassignment,
and the request is denied without prejudice to the proper filing of a notice of related cases in
accordance with Local Rule 123.
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complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the

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earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114

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F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter

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being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

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1967)).

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The court cautions plaintiff that failure to comply with the Federal Rules of Civil

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Procedure, this court’s Local Rules, or any court order may result in this action being dismissed.

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See E.D. Cal. L.R. 110.

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In addition, the court notes that the following legal standards may apply to plaintiff’s
intended claim for relief.

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To state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal

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constitutional or statutory right; and (2) that the violation was committed by a person acting under

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the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

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930, 934 (9th Cir. 2002).

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An individual defendant is not liable on a civil rights claim unless the facts establish the

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defendant’s personal involvement in the constitutional deprivation or a causal connection between

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the defendant’s wrongful conduct and the alleged constitutional deprivation. See Hansen v.

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Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978).

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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. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Plaintiff must

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identify the particular person or persons who violated his rights. He must also plead facts

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showing how that particular person was involved in the alleged violation.

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Prisoners have a constitutional right of access to the courts. Bounds v. Smith, 430 U.S.

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817, 828 (1977). “[T]he fundamental constitutional right of access to the courts requires prison

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authorities to assist inmates in the preparation and filing of meaningful legal papers by providing

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prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Id.

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Inmates do not have “an abstract, freestanding right to a law library or legal assistance,” and

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“cannot establish relevant actual injury simply by establishing that [the] prison’s law library or
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legal assistance program is subpar in some theoretical sense.” Lewis v. Casey, 518 U.S. 343, 351

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(1996). The right to litigation assistance “is limited to the tools prisoners need in order to attack

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their sentences, [either] directly or collaterally, and in order to challenge the conditions of their

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confinement.” Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011). (quotations omitted).

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The right to legal assistance is limited to the pleading stage. Id.

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Prisoners also have the right “to litigate claims challenging their sentences or the

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conditions of their confinement to conclusion without active interference by prison officials.”

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Silva, 658 F.3d at 1102. An inmate alleging a violation of this right must show that the

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deprivation actually injured his litigation efforts, in that the defendant hindered his efforts to

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bring, or caused him to lose, an actionable claim challenging his criminal sentence or conditions

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of confinement. See Lewis, 518 U.S. at 351; Christopher v. Harbury, 536 U.S. 403, 412-15

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(2002).

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To state a viable First Amendment retaliation claim, a prisoner must allege five elements:

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“(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3)

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that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First

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Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”

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Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). If plaintiff intents to assert a

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retaliation claim, he must allege facts showing that defendants were aware of his prior

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engagement in protected conduct and that his protected conduct was “the ‘substantial’ or

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‘motivating’ factor” behind their alleged misconduct. Brodheim v. Cry, 584 F.3d 1262, 1271 (9th

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Cir. 2009). Generally speaking, a retaliation claim cannot rest on the logical fallacy of post hoc,

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ergo propter hoc, literally, “after this, therefore because of this.” See Huskey v. City of San Jose,

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204 F.3d 893, 899 (9th Cir. 2000).

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IV.

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Summary of Order
Accordingly, IT IS HEREBY ORDERED that:

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

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2. Plaintiff’s request that this action be reassigned to Judge Claire (ECF No. 5) is

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denied without prejudice.
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3. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected

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in accordance with the notice to the California Department of Corrections and

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Rehabilitation filed concurrently herewith.

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4. The complaint is dismissed with leave to amend within 30 days. The complaint

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must bear the docket number assigned to this case and be titled “Amended

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Complaint.” Failure to comply with this order will result in dismissal of this

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action for failure to prosecute. If plaintiff files an amended complaint stating a

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

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States Marshal.

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Dated: October 3, 2017.

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