Johnson v. Fox
Filing
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ORDER signed by Magistrate Judge Deborah Barnes on 3/1/2017 GRANTING plaintiff's 20 request to proceed IFP. Plaintiff shall pay the $350.00 filling fee in accordance with the concurrent CDCR order. Plaintiff's complaint is DISMISSED. Plaintiff has 30 days to file an amended complaint. The Clerk shall send plaintiff a prisoner complaint form. Plaintiff's 13 motion to amend is DENIED. Plaintiff's 15 motion for an investigator is DENIED. Plaintiff's 2 , 16 , 17 , 22 , 24 , 25 motions for injunctive relief are DENIED without prejudice. Plaintiff's 23 "motion" requesting any dismissal be without prejudice is DISMISSED as premature. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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HERBERT JOHNSON,
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No. 2:16-cv-2492 JAM DB P
Plaintiff,
v.
ORDER
ROBERT W. FOX, et al.,
Defendants.
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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.
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§ 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This
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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
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Before the court are plaintiff’s motion to proceed in forma pauperis, the screening of plaintiff’s
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complaint, and numerous other motions filed by plaintiff. Each is addressed below.
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IN FORMA PAUPERIS
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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §
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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. §§
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1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in
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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct
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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and
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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments
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of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.
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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time
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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. §
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1915(b)(2).
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SCREENING
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I.
Legal Standards
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The court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th
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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully
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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th
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Cir. 1989); Franklin, 745 F.2d at 1227.
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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon
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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in
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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467
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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt
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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under
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this standard, the court must accept as true the allegations of the complaint in question, Hosp.
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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light
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most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.
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McKeithen, 395 U.S. 411, 421 (1969).
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Allegations in Plaintiff’s First Amended Complaint
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II.
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Plaintiff, who is incarcerated at the California Medical Facility (“CMF”), filed a first amended
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complaint on October 31, 2016. (ECF No. 8.) Therein, he lists the following defendants:
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Warden Robert W. Fox, Officer A. Powell, Counselor C.C.I. K. Berlin, Dr. B. Haile, “Ms. Vicki,
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Medical Records,” Librarian McAtee, Nathan Turner, Joseph Bruner, and several unnamed
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defendants.
In his first claim, plaintiff identifies the issues as “threat to safety.” Plaintiff states that on
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August 18, 2016, defendant Officer Powell was not at her assigned station at 3:30 yard call.
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Plaintiff rang the H-Wing bell. Officer Powell was handing out mail and told plaintiff and two
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other inmates that they had missed the unlock, but could get a shower or go to the day room.
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Plaintiff stated that it was a “heat wave day” so he did not want to go into the day room and the
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shower is not safe because there are no safety strips on the floor. Plaintiff states he was written
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up. He filed an appeal, including a “22 form” to defendant Berlin, but received no answer.
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Plaintiff states that his injury was the denial of being permitted to walk around. (Id. at 5.)
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In his second claim, plaintiff states that he was written up by defendant Berlin because he
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refused to take a “compas test.1” He contends Berlin is harassing him and “abusing her
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authority.” (Id. at 6.)
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In claim three, plaintiff alleges defendant Dr. Haile violated his Eighth Amendment rights
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by sending him to physical therapy for his chronic knee pain. He also indicates that Dr. Haile
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was recommending a knee replacement, which plaintiff apparently does not feel is necessary.
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Plaintiff claims his injury is mental anguish and stress. (Id. at 7.)
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III.
Does Plaintiff’s First Amended Complaint State Cognizable Claims?
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The court finds the allegations in plaintiff’s complaint so vague that it is unable to
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determine whether the current action is frivolous or fails to state a claim for relief. The court has
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determined that the complaint does not contain a short and plain statement as required by Fed. R.
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According to the CDCR’s website, COMPAS is “a research-based, risk and needs assessment
tool for criminal justice practitioners to assist them in the placement, supervision, and case
management of offenders in community and secure settings.” See
http://www.cdcr.ca.gov/rehabilitation/docs/FS_COMPAS_Final_4-15-09.pdf .
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Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must
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give fair notice and state the elements of the claim plainly and succinctly. Jones v. Cmty. Redev.
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Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must identify specifically what each
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defendant has done, or not done. In his claims, plaintiff does not make any allegations regarding
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defendants Fox, Ms. Vicki, McAtee, Turner, Bruner, or the unnamed defendants. Plaintiff must
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allege with at least some degree of particularity overt acts which the defendants engaged in that
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support plaintiff's legal claims. Id.
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With respect to plaintiff’s claims against the remaining defendants, they are also
insufficient.
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A. Eighth Amendment Claims
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To state a claim under the Eighth Amendment for inhumane conditions of confinement, a
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prisoner must show that prison officials were deliberately indifferent to a substantial risk of harm
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to his health or safety. See, e.g., Farmer v. Brennan, 511 U.S. 825, 847 (1994); Thomas v.
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Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010). “Deliberate indifference describes a state of
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mind more blameworthy than negligence” but is satisfied by something “less than acts or
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omissions for the very purpose of causing harm or with knowledge that harm will result.”
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Farmer, 511 U.S. at 835. Plaintiff must demonstrate first that the seriousness of the risk was
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obvious or provide other circumstantial evidence that defendants were aware of the substantial
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risk to his health, and second that there was no reasonable justification for exposing him to that
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risk. Lemire v. California Dep’t of Corrs. and Rehab., 726 F.3d 1062, 1078 (citing Thomas, 611
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F.3d at 1150).
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In his first claim, plaintiff appears to be alleging only that Officer Powell denied him access to
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the yard on one day. That is not sufficient to state a claim under the Eighth Amendment.
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Outdoor exercise is a basic human need protected by the Eighth Amendment, and the denial of
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outdoor exercise may violate the Constitution, depending on the circumstances. Richardson v.
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Runnels, 594 F.3d 666 (9th Cir. 2010); Norwood v. Vance, 591 F.3d 1062, 1070 (9th Cir. 2010).
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When an inmate alleges the denial of constitutionally adequate outdoor exercise, the inquiry is
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fact specific. In determining whether a deprivation of outdoor exercise is sufficiently serious, the
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court must consider the circumstances, nature, and duration of the deprivation. Spain v.
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Procunier, 600 F.2d 189, 199 (9th Cir. 1979).
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“[T]he Ninth Circuit has not identified a specific minimum amount of weekly exercise that
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must be afforded” under the Eighth Amendment. Jayne v. Bosenko, No. 2:08-cv-2767 MSB,
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2009 WL 4281995, at *8 (E.D. Cal. Nov. 23, 2009) (citation omitted). Indeed, complete denial of
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outdoor exercise for a month may not be unconstitutional. Hayward v. Procunier, 629 F.2d 599,
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603 (9th Cir. 1980) (denial of yard time for a month not unconstitutional); May v. Baldwin, 109
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F.3d 557, 565–66 (9th Cir. 1997) (denial of yard time for 21 days not unconstitutional).
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However, for a temporary denial of exercise to be actionable, plaintiff must demonstrate an
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adverse medical impact. Lopez, 203 F.3d at 1133 n.15.
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B. Harassment
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In his second claim, plaintiff appears to be alleging that being forced to take the COMPAS
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test, and being written up for refusing to do so, amounted to harassment. Plaintiff’s contention
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here does not rise to the level of a constitutional violation for harassment. See Oltarzewski v.
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Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987).
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Further, plaintiff has not shown he had a right of constitutional magnitude to refuse to take the
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COMPAS test. Therefore, he also fails to show defendant Berlin’s writing him up amounted to
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retaliation for the exercise of a protected activity. See Soranno’s Gasco, Inc. v. Morgan, 874 F.2d
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1310, 1314 (9th Cir. 1989) (to state a claim for retaliation, a plaintiff must plead facts which
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suggest that retaliation for the exercise of protected conduct was the “substantial” or “motivating”
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factor behind the defendant’s conduct); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).
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On these facts, it does not appear that plaintiff can state a claim. However, the court will
permit him an opportunity to attempt to do so in an amended complaint.
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C. Failure to Exhaust
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In plaintiff’s third claim, he contends defendant Haile forced him to go to physical
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therapy. Plaintiff states here that he did not appeal his grievance regarding Haile to the third level
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because Dr. Brown “is going to give me the (right operation) orthoscopy.” (Compl. (ECF No. 8
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at 7.) The Prison Litigation Reform Act of 1995 (PLRA) mandates that “[n]o action shall be
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brought with respect to prison conditions under section 1983 . . . or any other Federal law, by a
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prisoner confined in any jail, prison, or other correctional facility until such administrative
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remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “[T]o properly exhaust
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administrative remedies prisoners ‘must complete the administrative review process in
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accordance with the applicable procedural rules,’—rules that are defined not by the PLRA, but by
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the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting
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Woodford, 548 U.S. at 88); see also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009)
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(“The California prison system's requirements ‘define the boundaries of proper exhaustion.’”)
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(quoting Jones, 549 U.S. at 218). In California, the administrative review process is not complete
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until a prisoner has appealed his grievance through the third level of appeal. See Cal. Code Regs.
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tit. 15, § 3084.7.
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Plaintiff’s complaint shows that he has not exhausted his claim against defendant Haile
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regarding being required to attend physical therapy on July 11, 2016. Accordingly, plaintiff
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should not renew this claim if he chooses to amend his complaint.
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D. Amending the Complaint
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Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the
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complaint must be dismissed. The court will, however, grant leave to file an amended complaint.
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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions
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complained of have resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625
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F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how each named
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defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some
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affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo
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v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v.
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Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
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Furthermore, supervisory personnel are generally not liable under § 1983 for the actions
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of their employees under a theory of respondeat superior and, therefore, when a named defendant
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holds a supervisorial position, the causal link between him and the claimed constitutional
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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);
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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations of
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official participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d
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266, 268 (9th Cir. 1982).
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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to
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make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended
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complaint be complete in itself without reference to any prior pleading. This is because, as a
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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375
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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no
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longer serves any function in the case. Therefore, in an amended complaint, as in an original
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complaint, each claim and the involvement of each defendant must be sufficiently alleged.
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MISCELLANEOUS MOTIONS
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Plaintiff moves to amend his complaint. (ECF No. 13.) Plaintiff states that he is being
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harassed by three inmates and that bullying is a crime. A suit under § 1983 is only appropriate
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against defendants acting under color of state law. See Chudacoff v. Univ. Med. Ctr. of S. Nev.,
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649 F.3d 1143, 1149–50 (9th Cir. 2011) (setting forth elements of a § 1983 claim and describing
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instances in which a private actor's conduct constitutes state action); Caviness v. Horizon Cmty.
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Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (“The state-action element in § 1983
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excludes from its reach merely private conduct, no matter how discriminatory or wrongful.”
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(citation and internal quotation marks omitted)); Williams v. Anderson, No. CIV S-11-0431 JAM
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CMK P, 2011 WL 2610528, at *1 (E.D. Cal. Apr. 22, 2011) (an inmate is not a “state actor” for
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purposes of § 1983 unless he has conspired with state officials to deprive a plaintiff of his
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constitutional rights) (citing Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991) and Tower v.
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Glover, 467 U.S. 914, 920 (1984)), findings and recos. adopted, 2011 WL 2610397 (E.D. Cal.
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July 1, 2011). Accordingly, plaintiff’s motion to amend will be denied. Plaintiff is further
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warned that he should not include claims against private actors, such as other inmates, in his
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amended complaint.
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Plaintiff also moves for an investigator to help him recover his headphones. (ECF No.
15.) The court is aware of no authority permitting it to provide plaintiff an investigator. See
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Georgacarakos v. Wiley, No. 07-cv-1712-MSK-MEH, 2009 WL 440934, at *7 (D. Colo. Feb. 23,
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2009) (in forma pauperis statute does not provide for the appointment of investigators). Further,
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to the extent plaintiff wishes to make a due process claim in this court based on the deprivation of
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his property, he must show the deprivation was intentional and “was carried out pursuant to
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established state procedures, regulations or statutes.” Piatt v. McDougall, 773 F.2d 1032, 1036
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(9th Cir. 1985). If the deprivation of his property was not done pursuant to a state procedure, in
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other words it was unauthorized, then plaintiff cannot state a claim under the Due Process Clause
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of the Fourteenth Amendment. See Hudson v. Palmer, 468 U.S. 517, 533 (1984). Plaintiff’s
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remedy for an unauthorized deprivation of his property is through a state tort claim under
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California Government Code §§ 900, et seq.
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Plaintiff has filed multiple motions in which he appears to ask for injunctive relief.
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Plaintiff complains about a disciplinary write-up and asks for the U.S. Marshall’s help (ECF No.
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2), he moves for return of his headphones (ECF No. 16), he moves to stop harassment in the form
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of being required to take the COMPAS test (ECF No. 17), and he moves for an order preventing
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doctors from contacting and harassing him (ECF Nos. 22, 24, 25). Plaintiff is advised that a party
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requesting preliminary injunctive relief must show that “he is likely to succeed on the merits, that
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he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
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equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res.
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Def. Council, 555 U.S. 7, 20 (2008). The propriety of a request for injunctive relief hinges on a
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significant threat of irreparable injury that must be imminent in nature. Caribbean Marine Serv.
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Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988).
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Plaintiff may not seek preliminary injunctive relief until the court finds that his complaint
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presents cognizable claims. See Zepeda v. United States Immigration Serv., 753 F.2d 719, 727
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(9th Cir. 1985) (“A federal court may issue an injunction if it has personal jurisdiction over the
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parties and subject matter jurisdiction over the claim; [however] it may not attempt to determine
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the rights of persons not before the court.”). As explained above, plaintiff's complaint will be
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dismissed with leave granted to file an amended complaint. Thus, plaintiff has not demonstrated
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that he is likely to prevail on the merits of his claims. Moreover, the court has not authorized
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service of the complaint upon anyone. Accordingly, plaintiff's motions for preliminary
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injunctions will be denied as premature.
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Finally, plaintiff filed a document entitled a “motion” in which he complains about his
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lack of access to envelopes and asks that if the court determines he has “defaulted” his case, the
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court dismiss the case without prejudice. (ECF No. 23.) Plaintiff is advised that if the court finds
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it appropriate to dismiss his case for lack of prosecution, such a dismissal would be without
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prejudice to his right to file a new action. In any event, because plaintiff will be permitted to
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amend his complaint, his request for dismissal without prejudice is premature and his “motion”
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will be dismissed.
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Plaintiff is warned that he may not file continual motions in this action complaining about
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various injuries he feels he has suffered. All of plaintiff’s claims must be included in his
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amended complaint and must conform to the standards set out above.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 20) is granted.
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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff
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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. §
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1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the
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Director of the California Department of Corrections and Rehabilitation filed concurrently
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herewith.
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3. Plaintiff’s complaint is dismissed.
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4. Plaintiff is granted thirty days from the date of service of this order to file an amended
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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil
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Procedure, and the Local Rules of Practice. The amended complaint must bear the docket
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number assigned this case and must be labeled “Second Amended Complaint.” Plaintiff must file
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an original and two copies of the amended complaint. Failure to file an amended complaint in
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accordance with this order may result in a recommendation that this action be dismissed.
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5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint
form used in this district.
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6. Plaintiff’s motion to amend the complaint (ECF No. 13) is denied;
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7. Plaintiff’s motion for an investigator (ECF No. 15) is denied;
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8. Plaintiff’s motions for injunctive relief (ECF Nos. 2, 16, 17, 22, 24, 25) are denied
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without prejudice;
9. Plaintiff’s “motion” requesting any dismissal be without prejudice (ECF No. 23) is
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dismissed as premature.
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Dated: March 1, 2017
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