(PC) Perryman v. Warden

Filing 6

ORDER signed by Magistrate Judge Jeremy D. Peterson on 3/30/2021 GRANTING 2 Motion to Proceed IFP and GRANTING Plaintiff 60 days from the service of this order to file either an amended complaint or advise the court he wishes to stand by his current complaint. (Henshaw, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DAVID PERRYMAN, 11 12 13 14 Plaintiff, v. WARDEN, Case No. 2:21-cv-00421-JDP (PC) ORDER GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS ECF No. 2 Defendant. SCREENING ORDER THAT PLAINTIFF: 15 (1) FILE AN AMENDED COMPLAINT; OR 16 (2) NOTIFY THE COURT THAT HE WISHES TO STAND BY HIS COMPLAINT, SUBJECT TO A RECOMMENDATION THAT THIS CASE BE DISMISSED 17 18 19 20 21 22 ECF No. 1 SIXTY-DAY DEADLINE Plaintiff David Perryman is a state prisoner proceeding without counsel in this civil rights 23 action brought under 42 U.S.C. § 1983. He alleges that prison officials, none of whom are 24 named, have violated his constitutional rights by failing to address his grievances, failing to 25 protect him from Covid-19, and by falsely accusing him of refusing to accept a cellmate. ECF 26 No. 1 at 6, 8, 12. I find, for the reasons stated below, that plaintiff’s complaint does not comport 27 with Rule 8 of the Federal Rules of Civil Procedure. Additionally, plaintiff cannot bring 28 unrelated claims against multiple defendants. I will give him leave to amend. 1 1 2 3 4 Plaintiff has also filed an application to proceed in forma pauperis. ECF No 2. It makes the required showing and is granted. Screening and Pleading Requirements A federal court must screen a prisoner’s complaint that seeks relief against a governmental 5 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 6 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 7 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 8 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 9 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 10 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 11 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 12 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 13 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 14 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 15 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 16 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 17 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 18 n.2 (9th Cir. 2006) (en banc) (citations omitted). 19 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 20 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 21 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 22 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 23 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 24 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 25 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 26 27 28 2 1 2 Analysis Plaintiff has raised three factually distinct claims. First, he alleges that, in February of 3 2021, unnamed prison officials falsely accused him of refusing to accept a cellmate. ECF No. 1 4 at 5-7. Second, he alleges that, in December of 2020, unnamed defendants failed to protect him 5 from Covid-19 when they refused to assign him to a single-man cell. Id. at 8-9. Third, he alleges 6 that, in October 2020, officials refused to address his grievances. Id. at 11-12. The complaint 7 does not comply with the Federal Rules of Civil Procedure. Under Rule 8 of the Federal Rules of 8 Civil Procedure a claimant must bring simple and direct allegations that allow each defendant to 9 determine what he or she is being sued for. Fed. R. Civ. P. 8; McHenry v. Renne, 84 F.3d 1172, 10 1178 (9th Cir. 1996). Plaintiff has identified two “Doe” defendants, ECF No.1 at 14-15, but has 11 not specifically alleged how either was involved in the aforementioned violations of his rights. 12 Additionally, plaintiff may not bring factually unrelated claims against more than one 13 defendant. See Fed. R. Civ. P. 20(a)(2); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) 14 (“[M]ultiple claims against a single party are fine, but . . . [u]nrelated claims against different 15 defendants belong in different suits . . . .”). Plaintiff has sued at least two defendants. His claims 16 encompass three different alleged violations of his rights and cannot proceed in one suit. 17 I will give plaintiff leave to amend his complaint. If plaintiff decides to file an amended 18 complaint, the amended complaint will supersede the current complaint. See Lacey v. Maricopa 19 County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc). This means that the amended 20 complaint must be complete on its face without reference to the prior pleading. See E.D. Cal. 21 Local Rule 220. Once an amended complaint is filed, the current complaint no longer serves any 22 function. Therefore, in an amended complaint, as in an original complaint, plaintiff must assert 23 each claim and allege each defendant’s involvement in sufficient detail. The amended complaint 24 should be titled “Amended Complaint” and refer to the appropriate case number. If plaintiff does 25 not file an amended complaint, I will recommend that this action be dismissed. 26 Accordingly, it is ORDERED that: 27 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is granted. 28 2. Within sixty days from the service of this order, plaintiff must either file an 3 1 Amended Complaint or advise the court he wishes stand by his current complaint. 2 3. Failure to comply with this order may result in the dismissal of this action. 3 4. The clerk’s office is directed to send plaintiff a complaint form. 4 5 IT IS SO ORDERED. 6 Dated: 7 8 March 30, 2021 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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