Alvarez v. Ryan

Filing 19

ORDER signed by Magistrate Judge Kendall J. Newman on 8/25/2017 GRANTING 5 Motion to Proceed IFP and DIMSISSING 1 Complaint with leave to amend within 30 days from the date of this order. Plaintiff to complete and submit the Notice of Amendment with the amended complaint. (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 BLACKIE FLORINCEO ALVAREZ, SR., 12 Plaintiff, 13 14 No. 2:17-cv-1516 GEB KJN P v. ORDER MARTIN A. RYAN, 15 Defendant. 16 Plaintiff is a former jail inmate, proceeding pro se. Plaintiff seeks relief pursuant to 42 17 18 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. 19 § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. 20 § 636(b)(1). Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). 21 22 Accordingly, the request to proceed in forma pauperis will be granted. The court is required to screen complaints brought by prisoners seeking relief against a 23 24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 25 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 26 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 27 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 28 //// 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 3 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 6 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 7 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 8 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 9 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 10 11 1227. Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 12 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 13 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 14 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 15 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 16 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 17 sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific 18 facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what 19 the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 20 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted). 21 In reviewing a complaint under this standard, the court must accept as true the allegations of the 22 complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most 23 favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other 24 grounds, Davis v. Scherer, 468 U.S. 183 (1984). 25 The Civil Rights Act under which this action was filed provides as follows: 26 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. 2 27 28 1 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 2 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 3 Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 4 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 5 meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or 6 omits to perform an act which he is legally required to do that causes the deprivation of which 7 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 8 9 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant 10 holds a supervisorial position, the causal link between him and the claimed constitutional 11 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 12 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague 13 and conclusory allegations concerning the involvement of official personnel in civil rights 14 violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 15 The complaint is difficult to parse. Plaintiff raises broad allegations concerning the 16 conditions of housing in the Amador County Jail, medical care, dental care, theft of plaintiff’s 17 property, as well as allegations concerning proceedings in the underlying criminal case against 18 plaintiff. 19 First, plaintiff is advised that this court is barred from directly interfering with ongoing 20 criminal proceedings in state court, absent extraordinary circumstances. See Younger v. Harris, 21 401 U.S. 37, 46 (1971); Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986) (“When a state 22 criminal prosecution has begun the Younger rule directly bars a declaratory judgment action” as 23 well as a section 1983 action for damages “where such an action would have a substantially 24 disruptive effect upon ongoing state criminal proceedings.”). Here, plaintiff has not alleged 25 extraordinary circumstances. Younger, 401 U.S. at 48-50. Plaintiff may raise his constitutional 26 claims in his ongoing criminal proceedings in state court. Lebbos v. Judges of the Superior 27 Court, 883 F.2d 810, 813 (9th Cir. 1989) (“Abstention is appropriate based on ‘interest of comity 28 and federalism [that] counsel federal courts to abstain from jurisdiction whenever federal claims 3 1 have been or could be presented in ongoing state judicial proceedings that concern important state 2 interests.’”). 3 Second, plaintiff names John Doe defendants in his complaint. The Ninth Circuit has held 4 that where a defendant’s identity is unknown prior to the filing of a complaint, the plaintiff should 5 be given an opportunity through discovery to identify the unknown defendants, unless it is clear 6 that discovery would not uncover the identities or that the complaint would be dismissed on other 7 grounds. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie v. 8 Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). However, plaintiff does not identify each defendant 9 John Doe and his or her alleged act committed which plaintiff contends violated his constitutional 10 rights. This is insufficient to put prospective defendants on notice of their alleged actions or 11 omissions that plaintiff claims violate his federal rights. In order to link these doe defendants to 12 the alleged acts or omissions that demonstrate a violation of plaintiff's federal rights, plaintiff is 13 granted leave to amend, to either name the defendants involved, or list the doe defendants 14 involved. If plaintiff can only list these defendants as John Doe, plaintiff must identify the John 15 Doe as best as possible, and allege specific acts that these doe defendants did, such as “John Doe 16 1 did X” and “John Doe 2 and 3 did Y.” Plaintiff is reminded that “[a] plaintiff must allege facts, 17 not simply conclusions, that show that an individual was personally involved in the deprivation of 18 his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 19 Third, the court finds the remaining allegations in plaintiff’s complaint so vague and 20 conclusory that it is unable to determine whether the current action is frivolous or fails to state a 21 claim for relief. The court has determined that the complaint does not contain a short and plain 22 statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible 23 pleading policy, a complaint must give fair notice and state the elements of the claim plainly and 24 succinctly. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must 25 allege with at least some degree of particularity overt acts which defendants engaged in that 26 support plaintiff’s claim. Id. Because plaintiff has failed to comply with the requirements of Fed. 27 R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file 28 an amended complaint. 4 1 In the event plaintiff chooses to amend, he must file his complaint on the form complaint 2 provided. In an amended complaint, the allegations must be set forth in numbered paragraphs. 3 Fed. R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. 4 Fed. R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 5 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 6 Unrelated claims against different defendants must be pursued in multiple lawsuits. 7 The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim . . . may join, [] as independent or as alternate claims, as many claims . . . as the party has against an opposing party.’ Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, 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). 8 9 10 11 12 13 14 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Fed. R. Civ. P. 20(a)(2) (joinder of 15 defendants not permitted unless both commonality and same transaction requirements are 16 satisfied). 17 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 18 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. Rizzo v. 19 Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms how each 20 named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983 unless there is 21 some affirmative link or connection between a defendant’s actions and the claimed deprivation. 22 Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d at 743. 23 Furthermore, vague and conclusory allegations of official participation in civil rights violations 24 are not sufficient. Ivey, 673 F.2d at 268. 25 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 26 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended 27 complaint be complete in itself without reference to any prior pleading. This requirement exists 28 5 1 because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. 2 Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original 3 pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an 4 original complaint, each claim and the involvement of each defendant must be sufficiently 5 alleged. 6 7 8 9 Plaintiff may join multiple claims if they are all against a single defendant. Fed. R. Civ. P. 18(a). Plaintiff may not bring a § 1983 action until he has exhausted such administrative remedies as are available to him. 42 U.S.C. § 1997e(a). The Prison Litigation Reform Act 10 (“PLRA”) requires plaintiff to exhaust whatever administrative remedies are available to him 11 prior to filing a complaint in federal court. Such requirement is mandatory. Porter v. Nussle, 534 12 U.S. 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of 13 confinement, whether they involve general circumstances or particular episodes, and whether they 14 allege excessive force or some other wrong. Porter, 534 U.S. at 532. 15 16 Finally, plaintiff is provided the following standards to assist him in drafting any amended complaint. 17 Legal Standards: Inadequate Medical Care 18 “[T]he ‘deliberate indifference’ standard applies to claims that correction facility officials 19 failed to address the medical needs of pretrial detainees.” Clouthier v. County of Contra Costa, 20 591 F.3d 1232, 1242 (9th Cir. 2010). See also Simmons v. Navajo County, 609 F.3d 1011, 1017 21 (9th Cir. 2010) (“Although the Fourteenth Amendment’s Due Process Clause, rather than the 22 Eighth Amendment’s protection against cruel and unusual punishment, applies to pretrial 23 detainees, we apply the same standards in both cases.”) (internal citations omitted). 24 Deliberate indifference is “a state of mind more blameworthy than negligence” and 25 “requires ‘more than ordinary lack of due care for the prisoner’s interests or safety.’” Farmer, 26 511 U.S. at 835. Under the deliberate indifference standard, a person may be found liable for 27 denying adequate medical care if he “knows of and disregards an excessive risk to inmate health 28 and safety.” Id. at 837. See also Estelle v. Gamble, 429 U.S. 97, 106 (1976); Lolli v. County of 6 1 Orange, 351 F.3d 410, 418-19 (9th Cir. 2003); Doty v. County of Lassen, 37 F.3d 540, 546 (9th 2 Cir. 1994). A deliberate indifference claim predicated upon the failure to provide medical 3 treatment has two elements: 6 First, the plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” Second, the plaintiff must show the defendant’s response to the need was deliberately indifferent. 7 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). See also McGuckin v. Smith, 974 F.2d 1050, 8 1059 (9th Cir. 1991) (an Eighth Amendment medical claim has two elements: “the seriousness of 9 the prisoner’s medical need and the nature of the defendant’s response to that need.”), overruled 4 5 10 on other grounds by WMX Techs ., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 11 In accordance with the above, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 13 2. Plaintiff’s complaint is dismissed. 14 3. Within thirty days from the date of this order, plaintiff shall complete the attached 15 Notice of Amendment and submit the following documents to the court: 16 a. The completed Notice of Amendment; and 17 b. An original and one copy of the Amended Complaint. 18 Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the 19 Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 20 also bear the docket number assigned to this case and must be labeled “Amended Complaint.” 21 Failure to file an amended complaint in accordance with this order may result in the 22 dismissal of this action. 23 Dated: August 25, 2017 24 25 alva1516.14n 26 27 28 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BLACKIE FLORINCEO ALVAREZ, SR., 12 13 14 No. 2:17-cv-1516 GEB KJN P Plaintiff, v. NOTICE OF AMENDMENT MARTIN A. RYAN, 15 Defendant. 16 17 18 Plaintiff hereby submits the following document in compliance with the court's order filed______________. _____________ 19 20 21 22 23 24 25 26 27 28 Amended Complaint DATED: ________________________________ Plaintiff

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