Machado v. Lizarraga

Filing 45

ORDER signed by Magistrate Judge Carolyn K. Delaney on 8/2/19 DISMISSING 41 Second Amended Complaint; GRANTING plaintiff 30 days from the date of service of this order to file a compliant amended complaint; and DENYING 44 Motion to Appoint Counsel without prejudice. (Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JUANITA MACHADO,

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No. 2:17-cv-02430-TLN-CKD PS

Plaintiff,
v.

ORDER

J.A. LIZARRAGO,

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Defendant.

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Plaintiff is proceeding in this action pro se and in forma pauperis. This proceeding was

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referred to this court by Local Rule 302(c)(21).

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Background

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On October 18, 2018, the undersigned issued findings and recommendations

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recommending that defendant Lizarrago’s motion to dismiss plaintiff’s first amended complaint

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be granted. (ECF No. 33.) The findings and recommendations found that plaintiff did not

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sufficiently allege causation in her First Amendment claim because plaintiff offered nothing but

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conclusory statements concerning defendant Lizarraga’s knowledge of plaintiff’s participation in

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litigation, which plaintiff claims is the substantial or motivating factor behind defendant’s

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conduct. (Id. at 4–5.) Regarding plaintiff’s conspiracy claim, the undersigned found that

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plaintiff’s conclusory allegations that defendant Lizarraga conspired with unnamed Doe

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defendants to retaliate against her in violation of the First Amendment are not sufficient for the
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same reasons plaintiff’s First Amendment claim failed to state a claim upon which relief could be

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granted. (Id. at 5.)

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On January 15, 2019, District Judge Troy L. Nunley adopted the findings and

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recommendations and granted plaintiff leave to amend the complaint. (ECF No. 38.) Plaintiff

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was instructed to cure the deficiencies noted in the findings and recommendations and allege facts

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that show causation and that the adverse action did not reasonably advance any legitimate

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correctional goal. (Id. at 2.)
On March 11, 2019, plaintiff filed the operative second amended complaint (“SAC”).

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(ECF No. 41.)
On March 26, 2019, defendant filed a request for screening of plaintiff’s second amended

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complaint, ECF No. 42, which the undersigned granted on April 2, 2019, ECF No. 43.

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On June 24, 2019, plaintiff filed a motion to appoint counsel. (ECF No. 44.)
Plaintiff’s Second Amended Complaint

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The federal in forma pauperis statute authorizes federal courts to dismiss a case if the

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action, among other things, fails to state a claim upon which relief may be granted. 28 U.S.C.

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§ 1915(e)(2). In order to avoid dismissal for failure to state a claim a complaint must contain

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more than “naked assertion[s],” “labels and conclusions” or “a formulaic recitation of the

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elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–57 (2007).

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In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore,

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a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570.

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

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U.S. at 678. When considering whether a complaint states a claim upon which relief can be

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granted, the court must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93–94

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(2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v.

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Rhodes, 416 U.S. 232, 236 (1974).

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Here, the court finds that plaintiff failed to cure the previously-noted deficiencies in her

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second amended complaint. The allegations in plaintiff’s second amended complaint remain

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vague and conclusory. More specifically, plaintiff’s allegations do not provide sufficient

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particularity to support plaintiff’s claims, namely that any of the defendants were aware that

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plaintiff was assisting her husband with litigation before the adverse acts took place, or that the

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assistance was a motivating factor in their actions. Plaintiff only alleges that “CSP-LAC officials

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were made aware that Mr. Machado filed lawsuits against them,” SAC ¶ 24, officials told Mr.

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Machado that he was not popular with Lancaster and Corcoran and if he engages in litigation he

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will be transferred, SAC ¶ 27, that defendant Lizarraga knew of Mr. Machado’s litigation, SAC

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¶ 29, and that at some time defendant Lizarraga was made aware that plaintiff and Mr. Machado

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were drafting court documents, SAC ¶ 30. This is not sufficient to show that defendant Lizarraga

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knew of plaintiff’s assistance before the adverse acts at issue in the second amended complaint

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took place and that this knowledge was the reason for the adverse acts. This is even more

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insufficient as to the eight new defendants plaintiff attempts to name in the second amended

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complaint. Although it can be difficult to establish the motive or intent of a defendant or

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defendants, a plaintiff may rely on circumstantial evidence. Bruce v. Ylst, 351 F.3d 1283, 1289

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(9th Cir. 2003) (finding that a prisoner established a triable issue of fact regarding prison

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officials’ retaliatory motives by raising issues of suspect timing, evidence, and statements); Hines

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v. Gomez, 108 F.3d 265, 267–68 (9th Cir. 1997) (finding that the evidence presented in that case

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supported the inference that the defendant knew, at least to some extent, of the plaintiff’s use of

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the grievance system, which in turn supported the jury’s finding that the defendant filed a

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disciplinary report in retaliation for the plaintiff’s use of the grievance system); Pratt v. Rowland,

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65 F.3d 802, 808 (9th Cir. 1995) (explaining that “timing can properly be considered as

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circumstantial evidence of retaliatory intent” but finding in that case that there was little else to

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support the inference). The second amended complaint alleges no facts, circumstantial or

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otherwise, supporting an inference that the protected conduct motivated the defendants to separate

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plaintiff from her husband by excluding her as a visitor at any CDCR facility. At best, plaintiff

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only speculates that the defendants’ conduct was motivated by the fact that she participated with
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her husband in drafting lawsuits against prison staff.
Regarding plaintiff’s conspiracy claim, a conspiracy claim brought under section 1983

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requires proof of “‘an agreement or meeting of the minds to violate constitutional rights,’”

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Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001) (quoting United Steelworkers of Am. v.

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Phelps Dodge Corp., 865 F.2d 1539, 1540–41 (9th Cir. 1989) (additional quotations omitted)),

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and an actual deprivation of constitutional rights, Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir.

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2006) (quoting Woodrum v. Woodward Cnty., Okl., 866 F.2d 1121, 1126 (9th Cir. 1989)). “‘To

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be liable, each participant in the conspiracy need not know the exact details of the plan, but each

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participant must at least share the common objective of the conspiracy.’” Franklin, 312 F.3d at

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441 (quoting United Steelworkers, 865 F.2d at 1541). Although accepted as true, the “[f]actual

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allegations must be enough to raise a right to relief above the speculative level . . . .” Twombly,

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550 U.S. at 546. A bare allegation that the defendants conspired with each other to violate

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plaintiff’s constitutional rights will not suffice to give rise to a conspiracy claim under section

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1983. As with above, plaintiff’s allegations fail to establish a conspiracy claim against defendant

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Lizarraga or any of the eight new defendants.

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For these reasons, the court has determined that the second amended complaint does not

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state a claim upon which relief can be granted. 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 of City of L.A., 733 F.2d 646, 649 (9th Cir. 1984).

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Plaintiff must allege with at least some degree of particularity overt acts the defendants engaged

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in that support plaintiff’s claim. Id. Because plaintiff has failed to comply with these

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requirements, the second amended complaint must be dismissed. The court will, however, grant

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leave to file a third amended complaint.

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

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conduct complained of has resulted in a deprivation of plaintiff’s federal rights. See Ellis v.

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Cassidy, 625 F.2d 227 (9th Cir. 1980). This must include allegations of the defendants’

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knowledge of plaintiff’s participation in drafting lawsuits and a connection between this

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knowledge and the defendants’ alleged misconduct. In that regard, plaintiff’s second amended
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complaint consists largely of allegations pertaining to defendants’ knowledge of her husband’s

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legal actions—not plaintiff’s involvement in certain legal proceedings.

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Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s third 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 a third amended complaint, the previous

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complaints no longer serve any function in the case. Therefore, in an amended complaint, as in

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

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alleged.

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Plaintiff’s Request for the Appointment of Counsel

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On June 24, 2019 plaintiff filed a request for the appointment of counsel. (ECF No. 44.)

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In the request, plaintiff states that appointment of counsel is appropriate because (1) the case

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involves substantial and complex procedural and legal factual questions, (2) plaintiff lacks legal

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education, (3) this case will require experts, (4) plaintiff is indigent and cannot investigate crucial

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facts, and (5) this is a case where the parties dispute the facts.

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Any successful application for appointment of counsel must comply with criteria set forth

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in Bradshaw v. Zoological Society of San Diego, 662 F.2d 1301 (9th Cir. 1981). Before

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appointing counsel to plaintiff, the court must consider (1) plaintiff’s financial resources, (2) the

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efforts already made by plaintiff to secure counsel, and (3) plaintiff’s likelihood of success on the

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merits. Id. at 1318. Appointment of counsel is not a matter of right. See Ivey v. Bd. of Regents,

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673 F. 2d 266 (9th Cir. 1982).

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Because plaintiff is proceeding in forma pauperis, the first factor, which relates to her

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financial condition, is a fortiori resolved in her favor. As to the second factor, plaintiff does not

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provide the efforts she made to obtain counsel, if any. As to the third factor, after reviewing the

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second amended complaint, the court has determined appointment of counsel is not warranted in

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this matter. For these reasons, the court will deny plaintiff’s request without prejudice to

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renewing the request.
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Conclusion

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s second amended complaint is dismissed;

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2. 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 Federal Rules of Civil Procedure, and the

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Local Rules of Practice; the amended complaint must bear the docket number assigned this case

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and must be labeled “Third Amended Complaint;” plaintiff must file an original and two copies

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of the amended complaint;

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3. Failure to file an amended complaint in accordance with this order will result in a
recommendation that this action be dismissed; and
4. Plaintiff’s motion to appoint counsel (ECF No. 44) is DENIED without prejudice.
Dated: August 2, 2019

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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