Deere v. Unknown CDC - Employees Prison Law Offices

Filing 12

ORDER signed by Magistrate Judge Deborah Barnes on 3/27/2017 GRANTING plaintiff's 2 motion to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. Plaintiff's claims against the Priso n Law Office are DISMISSED without leave to amend; in all other respects, plaintiff's complaint is DISMISSED with leave to amend. Plaintiff is GRANTED 30 days, to file an amended complaint. The Clerk shall send plaintiff a prisoner complaint form. (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 ARTHUR RAY DEERE, Sr., 12 13 14 15 No. 2:16-cv-1694 DB P Plaintiff, v. ORDER UNKNOWN CDC EMPLOYEES, et al., Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 18 1983. Plaintiff’s complaint is before the court for screening. In his complaint, plaintiff alleges 19 the air quality at Mule Creek State Prison (“MCSP”) was so poor that it worsened his Chronic 20 Obstructive Pulmonary Disease (“COPD”) and his overall health. For the reasons set forth 21 below, the court grants plaintiff’s application to proceed in forma pauperis and dismisses his 22 complaint with leave to amend. 23 IN FORMA PAUPERIS 24 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 25 26 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 27 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 28 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 1 1 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 2 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 3 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 4 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 5 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 6 1915(b)(2). 7 SCREENING 8 I. Legal Standards 9 The court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 11 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 12 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 13 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 14 U.S.C. § 1915A(b)(1) & (2). 15 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 16 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 17 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 18 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 19 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 20 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 21 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 22 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 23 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 24 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 25 However, in order to survive dismissal for failure to state a claim a complaint must contain more 26 than “a formulaic recitation of the elements of a cause of action;” it must contain factual 27 allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 28 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 2 1 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 2 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 3 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 4 The Civil Rights Act under which this action was filed provides as follows: 5 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 6 7 8 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 9 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 10 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 11 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 12 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 13 omits to perform an act which he is legally required to do that causes the deprivation of which 14 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 15 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 16 their employees under a theory of respondeat superior and, therefore, when a named defendant 17 holds a supervisorial position, the causal link between him and the claimed constitutional 18 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 19 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 20 concerning the involvement of official personnel in civil rights violations are not sufficient. See 21 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 22 II. Allegations of the Complaint 23 Plaintiff alleges that he suffered worsening of his COPD and other health problems due to the 24 poor air quality in his cell and in the day room at MCSP.1 Plaintiff identifies as defendants 25 “Unknown CDC Employees” and the Prison Law Office (“PLO”). Plaintiff states that he is 26 uncertain who to name in the prison system and asks whether the governor, director of the 27 28 1 According to notices filed by plaintiff on February 27, 2017, he is currently incarcerated at the California Institution for Men in Chino. (ECF Nos. 10, 11.) 3 1 California Department of Corrections and Rehabilitation (“CDCR”), or warden are proper 2 defendants. Plaintiff states that he has named the PLO because, as counsel for the plaintiff class 3 in Plata v. Brown, the PLO had an obligation to bring the air quality problems at MCSP to the 4 attention of the courts. 5 For relief, plaintiff seeks injunctive relief in the form of: (1) an order requiring MCSP to be 6 compliant with federal air quality standards; (2) a 30-day monitor of MCSP for “water, air, 7 medical, food service areas;” and (3) the assignment of new attorneys for the Plata plaintiffs. 8 Plaintiff also states that the court should decide if plaintiff is due damages. 9 III. Does Plaintiff State a Cognizable Claim? 10 A. Unidentified Defendants 11 There is no provision in the Federal Rules of Civil Procedure for including unnamed 12 defendants, also called “Doe” defendants, in a complaint. The use of Does in pleading practice is 13 generally disfavored – but it is not prohibited. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th 14 Cir. 1980); Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999); Lopes v. Viera, 543 F. 15 Supp.2d 1149, 1152 (E.D. Cal. 2008). However, plaintiff must allege facts showing when, where, 16 and how each Doe defendant violated his constitutional rights. See Addis v. Ariz. Dept. of 17 Corrs., No. CV14-1115-PHX-DGC, 2015 WL 875233, at *3 (D. Ariz. Mar. 2, 2015). Under 18 Section 1983, plaintiff must demonstrate that each defendant personally participated in the 19 deprivation of his rights. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). In other 20 words, there must be an actual connection or link between the actions of the defendants and the 21 deprivation alleged to have been suffered by plaintiff. See Monell, 436 U.S. at 691, 695. 22 Plaintiff fails to identify any specific action, or inaction, by any specific unnamed 23 defendant. Plaintiff fails to plead facts supporting a claim that he was exposed to a known risk, 24 that a defendant knowingly and purposefully declined to act to prevent his exposure to it, and that 25 such a failure caused actual harm to plaintiff. Plaintiff will be given leave to amend his complaint 26 to specify what defendants have done. 27 //// 28 //// 4 1 B. Prison Law Office 2 Plaintiff contends the PLO is not properly representing the plaintiffs in the Plata v. Brown 3 class action. The Plata class action deals with the constitutional adequacy of CDCR's inmate 4 medical health care, and the class consists of “all prisoners in the custody of the [CDCR] with 5 serous medical needs.” See Lopez v. Ndoh, No. 16-cv-0011-AWI-JLT, 2016 WL 3418432, at *1 6 (E.D. Cal. June 22, 2016) (citing Stip. for Inj. Relief 5, No. 24, No. 01-cv-01351 THE (N.D. 7 Cal.)). Plaintiff’s claim against the PLO is not cognizable in this case. 8 To the extent plaintiff is seeking rights under the remedial order issued in Plata, plaintiff 9 does not indicate that he is, in fact, a member of the Plata class. Moreover, it is well-settled that 10 the remedial order issued in Plata does not provide an independent cause of action under § 1983 11 as the order does not create or expand on a plaintiff’s constitutional rights. Coleman v. CDCR, 12 No. 09-cv-02192-SKO PC, 2011 WL 2619569, at *4 (E.D. Cal. July 1, 2011) (citing Cagle v. 13 Sutherland, 334 F.3d 980, 986-87 (9th Cir. 2003) (consent decrees often go beyond constitutional 14 minimum requirements, and do not create or expand rights)); see also Green v. McKaskle, 788 15 F.2d 1116, 1123 (5th Cir. 1986) (remedial decrees remedy constitutional violations but do not 16 create or enlarge constitutional rights and cannot serve as a substantive basis for damages). 17 Finally, if plaintiff has concerns about the actions of class counsel in Plata, he should express 18 those concerns to the class representative or court in that case. 19 Plaintiff’s claims against the PLO will be dismissed without leave to amend because, as 20 stated above, plaintiff has no viable claim here against the PLO for enforcement of the Plata 21 remedial order. See Hartmann v. Cal. Dept. of Corrs. and Rehab., 707 F.3d 1114, 1130 (9th Cir. 22 2013) (“A district court may deny leave to amend when amendment would be futile.”); Jones v. 23 Bernanke, 685 F. Supp. 2d 31, 35 (D. D.C. 2010). 24 C. Legal Claim 25 Plaintiff appears to be alleging that the conditions of his confinement constituted cruel and 26 unusual punishment, a violation of his Eighth Amendment rights. “[A] prison official may be 27 held liable under the Eighth Amendment for denying humane conditions of confinement only if 28 he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to 5 1 take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). To state a 2 claim for threats to safety, an inmate must allege facts to support that he was incarcerated under 3 conditions posing a substantial risk of harm and that prison officials were “deliberately 4 indifferent” to those risks. Id. at 834; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). To 5 adequately allege deliberate indifference, a plaintiff must set forth facts to support that a 6 defendant knew of, but disregarded, an excessive risk to inmate safety. Farmer, 511 U.S. at 837. 7 That is, “the official must both be aware of facts from which the inference could be drawn that a 8 substantial risk of serious harm exists, and he must also draw the inference.” Id. Plaintiff’s complaint currently identifies no conduct by any defendant that states a claim 9 10 under this Eighth Amendment standard. Plaintiff must identify at least one person who was 11 aware of the air quality problems plaintiff alleges, knew those air quality issues could or did 12 affect inmate health, had the authority to take action to remedy the problem, and failed to take 13 that action. Plaintiff will be given an opportunity to amend his complaint to identify defendants 14 and state a cognizable Eighth Amendment claim. 15 D. Relief Sought 16 Because plaintiff is no longer incarcerated at MCSP, his requests for injunctive relief will 17 be dismissed as moot. Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (citing Preiser v. 18 Newkirk, 422 U.S. 395, 402-03 (1975)). Plaintiff has not specifically sought damages. If he 19 wishes to proceed with this action, and if plaintiff believes he is entitled to compensatory or 20 punitive damages as a result of the alleged violation of his constitutional rights, he should so state 21 in a clear fashion in the space provided on the form complaint and indicate the specific amount in 22 damages that he seeks. 23 IV. Conclusion 24 Plaintiff’s complaint will be dismissed with leave to amend. Plaintiff is advised that in an 25 amended complaint he must clearly identify each defendant and the action that defendant took 26 that violated his constitutional rights. The court is not required to review exhibits to determine 27 what plaintiff’s charging allegations are as to each named defendant. Therefore, plaintiff’s 28 attachments to his fourth amended complaint were not considered part of his claims. If plaintiff 6 1 wishes to add a claim, he must include it in the body of the complaint. The charging allegations 2 must be set forth in the amended complaint so defendants have fair notice of the claims plaintiff is 3 presenting. That said, plaintiff need not provide every detailed fact in support of his claims. 4 Rather, plaintiff should provide a short, plain statement of each claim. See Fed. R. Civ. P. 8(a). 5 Any amended complaint must show the federal court has jurisdiction, the action is brought 6 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 7 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 8 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 9 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation 10 of a constitutional right if he does an act, participates in another’s act or omits to perform an act 11 he is legally required to do that causes the alleged deprivation). 12 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 13 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 14 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 15 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 16 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 17 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 18 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 19 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 20 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema 21 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 22 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 23 An amended complaint must be complete in itself without reference to any prior pleading. 24 E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded. 25 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 26 has evidentiary support for his allegations, and for violation of this rule the court may impose 27 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 28 //// 7 1 Accordingly, IT IS HEREBY ORDERED as follows: 2 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted. 3 2. Plaintiff’s claims against the Prison Law Office are dismissed without leave to amend; 4 in all other respects, plaintiff’s complaint (ECF No. 1) is dismissed with leave to 5 amend. 6 3. Plaintiff is granted thirty days from the date of service of this order to file an amended 7 complaint that complies with the requirements of the Civil Rights Act, the Federal 8 Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint 9 must bear the docket number assigned this case and must be labeled “First Amended 10 Complaint.” Plaintiff must file an original and two copies of the amended complaint. 11 Failure to file an amended complaint in accordance with this order may result in 12 dismissal of this action. 13 14 15 4. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint form used in this district. Dated: March 27, 2017 16 17 18 19 20 21 DLB:9 DLB1/prisoner-civil rights/deer1694.scrn 22 23 24 25 26 27 28 8

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