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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BLACKIE FLORINCEO ALVAREZ, SR.,

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Plaintiff,

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No. 2:17-cv-1516 GEB KJN P

v.

ORDER

MARTIN A. RYAN,

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Defendant.

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Plaintiff is a former jail inmate, proceeding pro se. Plaintiff seeks relief pursuant to 42

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U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1).
Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).

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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

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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 when 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), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

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2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

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meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

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1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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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 Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

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formulaic recitation of the elements of a cause of action;” it must contain factual allegations

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sufficient “to raise a right to relief above the speculative level.” Id. at 555. However, “[s]pecific

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facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what

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the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93

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(2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted).

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In reviewing a complaint under this standard, the court must accept as true the allegations of the

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complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most

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favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other

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grounds, Davis v. Scherer, 468 U.S. 183 (1984).

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The Civil Rights Act under which this action was filed provides as follows:

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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.
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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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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

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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), cert. denied, 442 U.S. 941 (1979). Vague

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and conclusory allegations concerning the involvement of official personnel in civil rights

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violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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The complaint is difficult to parse. Plaintiff raises broad allegations concerning the

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conditions of housing in the Amador County Jail, medical care, dental care, theft of plaintiff’s

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property, as well as allegations concerning proceedings in the underlying criminal case against

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plaintiff.

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First, plaintiff is advised that this court is barred from directly interfering with ongoing

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criminal proceedings in state court, absent extraordinary circumstances. See Younger v. Harris,

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401 U.S. 37, 46 (1971); Mann v. Jett, 781 F.2d 1448, 1449 (9th Cir. 1986) (“When a state

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criminal prosecution has begun the Younger rule directly bars a declaratory judgment action” as

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well as a section 1983 action for damages “where such an action would have a substantially

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disruptive effect upon ongoing state criminal proceedings.”). Here, plaintiff has not alleged

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extraordinary circumstances. Younger, 401 U.S. at 48-50. Plaintiff may raise his constitutional

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claims in his ongoing criminal proceedings in state court. Lebbos v. Judges of the Superior

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Court, 883 F.2d 810, 813 (9th Cir. 1989) (“Abstention is appropriate based on ‘interest of comity

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and federalism [that] counsel federal courts to abstain from jurisdiction whenever federal claims
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have been or could be presented in ongoing state judicial proceedings that concern important state

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interests.’”).

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Second, plaintiff names John Doe defendants in his complaint. The Ninth Circuit has held

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that where a defendant’s identity is unknown prior to the filing of a complaint, the plaintiff should

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be given an opportunity through discovery to identify the unknown defendants, unless it is clear

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that discovery would not uncover the identities or that the complaint would be dismissed on other

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grounds. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie v.

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Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). However, plaintiff does not identify each defendant

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John Doe and his or her alleged act committed which plaintiff contends violated his constitutional

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rights. This is insufficient to put prospective defendants on notice of their alleged actions or

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omissions that plaintiff claims violate his federal rights. In order to link these doe defendants to

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the alleged acts or omissions that demonstrate a violation of plaintiff's federal rights, plaintiff is

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granted leave to amend, to either name the defendants involved, or list the doe defendants

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involved. If plaintiff can only list these defendants as John Doe, plaintiff must identify the John

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Doe as best as possible, and allege specific acts that these doe defendants did, such as “John Doe

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1 did X” and “John Doe 2 and 3 did Y.” Plaintiff is reminded that “[a] plaintiff must allege facts,

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not simply conclusions, that show that an individual was personally involved in the deprivation of

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his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

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Third, the court finds the remaining allegations in plaintiff’s complaint so vague and

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conclusory that it is unable to determine whether the current action is frivolous or fails to state a

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claim for relief. The court has determined that the complaint does not contain a short and plain

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statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible

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pleading policy, a complaint must give fair notice and state the elements of the claim plainly and

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succinctly. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must

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allege with at least some degree of particularity overt acts which defendants engaged in that

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support plaintiff’s claim. Id. Because plaintiff has failed to comply with the requirements of Fed.

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R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file

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an amended complaint.
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In the event plaintiff chooses to amend, he must file his complaint on the form complaint

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provided. In an amended complaint, the allegations must be set forth in numbered paragraphs.

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Fed. R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant.

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Fed. R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or

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occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).

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Unrelated claims against different defendants must be pursued in multiple lawsuits.

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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).

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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007); see also Fed. R. Civ. P. 20(a)(2) (joinder of

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defendants not permitted unless both commonality and same transaction requirements are

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satisfied).

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

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about which he complains resulted in a deprivation of plaintiff’s constitutional rights. Rizzo v.

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Goode, 423 U.S. 362, 371 (1976). Also, the complaint must allege in specific terms how each

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named defendant is involved. Id. There can be no liability under 42 U.S.C. § 1983 unless there is

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some affirmative link or connection between a defendant’s actions and the claimed deprivation.

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Id.; May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d at 743.

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Furthermore, vague and conclusory allegations of official participation in civil rights violations

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are not sufficient. Ivey, 673 F.2d at 268.

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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 requirement exists

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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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

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(“PLRA”) requires plaintiff to exhaust whatever administrative remedies are available to him

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prior to filing a complaint in federal court. Such requirement is mandatory. Porter v. Nussle, 534

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U.S. 516, 524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of

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confinement, whether they involve general circumstances or particular episodes, and whether they

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allege excessive force or some other wrong. Porter, 534 U.S. at 532.

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Finally, plaintiff is provided the following standards to assist him in drafting any amended
complaint.

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Legal Standards: Inadequate Medical Care

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“[T]he ‘deliberate indifference’ standard applies to claims that correction facility officials

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failed to address the medical needs of pretrial detainees.” Clouthier v. County of Contra Costa,

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591 F.3d 1232, 1242 (9th Cir. 2010). See also Simmons v. Navajo County, 609 F.3d 1011, 1017

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(9th Cir. 2010) (“Although the Fourteenth Amendment’s Due Process Clause, rather than the

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Eighth Amendment’s protection against cruel and unusual punishment, applies to pretrial

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detainees, we apply the same standards in both cases.”) (internal citations omitted).

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Deliberate indifference is “a state of mind more blameworthy than negligence” and

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“requires ‘more than ordinary lack of due care for the prisoner’s interests or safety.’” Farmer,

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511 U.S. at 835. Under the deliberate indifference standard, a person may be found liable for

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denying adequate medical care if he “knows of and disregards an excessive risk to inmate health

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and safety.” Id. at 837. See also Estelle v. Gamble, 429 U.S. 97, 106 (1976); Lolli v. County of
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Orange, 351 F.3d 410, 418-19 (9th Cir. 2003); Doty v. County of Lassen, 37 F.3d 540, 546 (9th

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Cir. 1994). A deliberate indifference claim predicated upon the failure to provide medical

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treatment has two elements:

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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.

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Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). See also McGuckin v. Smith, 974 F.2d 1050,

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1059 (9th Cir. 1991) (an Eighth Amendment medical claim has two elements: “the seriousness of

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the prisoner’s medical need and the nature of the defendant’s response to that need.”), overruled

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on other grounds by WMX Techs ., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

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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 is granted.

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2. Plaintiff’s complaint is dismissed.

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3. Within thirty days from the date of this order, plaintiff shall complete the attached

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Notice of Amendment and submit the following documents to the court:

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a. The completed Notice of Amendment; and

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b. An original and one copy of the Amended Complaint.

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Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the

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Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

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also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

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Failure to file an amended complaint in accordance with this order may result in the

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dismissal of this action.

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Dated: August 25, 2017

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alva1516.14n

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BLACKIE FLORINCEO ALVAREZ, SR.,

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No. 2:17-cv-1516 GEB KJN P

Plaintiff,
v.

NOTICE OF AMENDMENT

MARTIN A. RYAN,

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Defendant.

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Plaintiff hereby submits the following document in compliance with the court's order
filed______________.
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Amended Complaint

DATED:
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Plaintiff