Khamo v. Warden, et al.

Filing 17

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/30/2017 GRANTING 11 Request to Proceed IFP; DENYING AS MOOT 6 Motion to Amend the Complaint; DENYING 14 Motion for Counsel and Equitable Tolling; and DISMISSING amended complaint with leave to amend within 30 days. Plaintiff to pay the $350 statutory filing fee. All payments to be collected in accordance with the notice to the CDCR filed concurrently herewith. (Henshaw, R)

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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 FABIAN KHAMO, 12 Plaintiff, 13 14 No. 2:16-cv-1827-MCE-EFB P v. WARDEN OF CSP-SAC, et al., 15 ORDER GRANTING IFP AND DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. § 1915A Defendants. 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 18 U.S.C. § 1983. He seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and 19 has filed motion to amend the complaint, and a “motion for counsel and equitable tolling.” 20 I. Request to Proceed In Forma Pauperis 21 Plaintiff’s in forma pauperis application makes the showing required by 28 U.S.C. 22 § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody 23 of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth 24 in 28 U.S.C. § 1915(b)(1) and (2). 25 II. Screening Requirement and Standards 26 Federal courts must engage in a preliminary screening of cases in which prisoners seek 27 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 28 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 1 1 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 2 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 3 relief.” Id. § 1915A(b). 4 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 5 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 6 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 7 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 8 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 9 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 10 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 11 U.S. 662, 679 (2009). 12 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 13 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 14 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 15 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 16 678. 17 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 18 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 19 content that allows the court to draw the reasonable inference that the defendant is liable for the 20 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 21 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 22 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 23 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 24 III. 25 26 27 28 Screening Order The court has reviewed plaintiff’s amended complaint (ECF No. 6) pursuant to § 1915A and finds that it must be dismissed with leave to amend.1 It alleges that defendant Duran, an 1 Plaintiff has filed two complaints in this action. ECF Nos. 1 & 6. In screening this action, the court looks exclusively to the most recent amended complaint (ECF No. 6). See Hal 2 1 officer at California State Prison, Sacramento, assisted plaintiff in obtaining his mail. It also 2 names the Director of the California Department of Corrections and Rehabilitation (“CDCR”), 3 and the Wardens of California State Prison, Sacramento and the California Correctional 4 Institution as defendants, but includes no factual allegations linking any of them to any violation 5 of plaintiff’s rights. The remainder of the allegations concerns events that allegedly arose in Kern 6 County, at the California Correctional Institution in Tehachapi, California. Specifically, it alleges 7 that Officer Duran threatened plaintiff and that Officers Martinez, Davis, and Campbell used 8 excessive force against plaintiff. The complaint also names Sergeant Ruiz as a defendant but 9 does not include any factual allegations linking Ruiz to any violation of plaintiff’s rights. The 10 complaint does not include a request for relief. For the reasons explained below, the complaint is 11 dismissed with leave to amend. 12 First, the complaint fails to state a cognizable claim against any of the defendants alleged 13 to be in Sacramento. In order to state a claim under § 1983, a plaintiff must allege: (1) the 14 violation of a federal constitutional or statutory right; and (2) that the violation was committed by 15 a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. 16 Williams, 297 F.3d 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil 17 rights claim unless the facts establish the defendant’s personal involvement in the constitutional 18 deprivation or a causal connection between the defendant’s wrongful conduct and the alleged 19 constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. 20 Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). It is not clear how Bettencourt violated plaintiff’s 21 federal rights by assisting plaintiff in locating his mail. Moreover, plaintiff may not sue a warden 22 or the Director of CDCR simply because of their roles as supervisors, i.e., on the theory that they 23 are liable for the unconstitutional conduct of their subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 24 679 (2009). Because respondeat superior liability is inapplicable to § 1983 suits, “a plaintiff must 25 ///// 26 27 28 Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that an amended pleading supersedes the original). Accordingly, plaintiff’s motion to amend the complaint (ECF No. 6) is denied as moot. 3 1 plead that each Government-official defendant, through the official’s own individual actions, has 2 violated the Constitution.” Id. 3 Second, the complaint appears to improperly join unrelated claims in a single lawsuit. 4 The Federal Rules of Civil Procedure do not allow a claimant to raise unrelated claims against 5 different defendants in a single action. Instead, a plaintiff may add multiple parties where the 6 asserted right to relief arises out of the same transaction or occurrence and a common question of 7 law or fact will arise in the action. See Fed. R. Civ. P. 20(a)(2). Unrelated claims involving 8 different defendants must be brought in separate lawsuits.2 9 Third, the court cannot determine whether venue in this division of the court is proper. 10 The federal venue statute provides that a civil action “may be brought in (1) a judicial district in 11 which any defendant resides, if all defendants are residents of the State in which the district is 12 located, (2) a judicial district in which a substantial part of the events or omissions giving rise to 13 the claim occurred, or a substantial part of property that is the subject of the action is situated, or 14 (3) if there is no district in which an action may otherwise be brought as provided in this action, 15 any judicial district in which any defendant is subject to the court’s personal jurisdiction with 16 respect to such action.” 28 U.S.C. § 1391(b). Tehachapi is in Kern County, which lies in the 17 Fresno Division of the United States District Court for the Eastern District of California. E.D. 18 Cal. Local Rule 120(d). If a second amended complaint reveals that there is no basis for 19 jurisdiction in the Sacramento division of the court, the court may transfer the action to the proper 20 division. E.D. Cal. Local Rule 120(f). 21 ///// 22 23 24 25 26 27 28 2 A plaintiff may properly assert multiple claims against a single defendant. Fed. Rule Civ. P. 18. In addition, a plaintiff may join multiple defendants in one action where “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions and occurrences” and “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). Unrelated claims against different defendants must be pursued in separate lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). This rule is intended “not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees – for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).” Id. 4 1 2 Lastly, Rule 8(a) requires a complaint to contain a demand for judgment for the relief sought. In any second amended complaint, plaintiff must include a request for relief. 3 For these reasons, plaintiff’s amended complaint must be dismissed. Plaintiff will be 4 granted leave to file an amended complaint, if he can allege a cognizable legal theory against a 5 proper defendant and sufficient facts in support of that cognizable legal theory. Lopez v. Smith, 6 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (district courts must afford pro se litigants an 7 opportunity to amend to correct any deficiency in their complaints). Should plaintiff choose to 8 file an amended complaint, the amended complaint shall clearly set forth the claims and 9 allegations against each defendant. Any amended complaint must cure the deficiencies identified 10 above and also adhere to the following requirements: 11 Any amended complaint must identify as a defendant only persons who personally 12 participated in a substantial way in depriving him of a federal constitutional right. Johnson v. 13 Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a 14 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 15 legally required to do that causes the alleged deprivation). 16 It must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 17 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. George 18 v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 19 Any amended complaint must be written or typed so that it so that it is complete in itself 20 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 21 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 22 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 23 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 24 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 25 1967)). 26 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 27 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 28 See E.D. Cal. L.R. 110. 5 1 IV. 2 Request for Appointment of Counsel Plaintiff has filed a “motion for counsel and equitable tolling.” ECF No. 14. The motion 3 is denied. District courts lack authority to require counsel to represent indigent prisoners in 4 section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In 5 exceptional circumstances, the court may request an attorney to voluntarily to represent such a 6 plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 7 Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether 8 “exceptional circumstances” exist, the court must consider the likelihood of success on the merits 9 as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 10 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered 11 those factors, the court finds there are no exceptional circumstances in this case. 12 13 V. Summary of Order Accordingly, IT IS HEREBY ORDERED that: 14 1. Plaintiff’s request to proceed in forma pauperis (ECF No. 11) is granted. 15 2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 16 in accordance with the notice to the California Department of Corrections and 17 Rehabilitation filed concurrently herewith. 18 3. Plaintiff’s motion to amend the complaint (ECF No. 6) is denied as moot. 19 4. Plaintiff’s “motion for counsel and equitable tolling” (ECF No. 14) is denied. 20 5. The amended complaint is dismissed with leave to amend within 30 days. The 21 complaint must bear the docket number assigned to this case and be titled “Second 22 Amended Complaint.” Failure to comply with this order may result in dismissal of 23 this action for failure to prosecute and failure to state a claim. If plaintiff files an 24 amended complaint stating a cognizable claim the court will proceed with service 25 of process by the United States Marshal. 26 Dated: August 30, 2017. 27 28 6

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