(PC) Latifi v. Cooper et al

Filing 9

ORDER signed by Magistrate Judge Kendall J. Newman on 5/22/2023 GRANTING plaintiff is 30 days to either file a second amended complaint or to notify the court as to which of the two claims raised in the amended complaint on which he would like to proceed. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KAREEM LATIFI,

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Plaintiff,

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No. 2: 23-cv-0665 KJN P

v.

ORDER

JIM COOPER, et al.,

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Defendants.

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Plaintiff is a county prisoner, proceeding without counsel, with a civil rights action

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pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s amended complaint. (ECF

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No. 8.)
Named as defendants are Sacramento County Sheriff Cooper, Food Service Supervisor

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Johnson and Dr. Singh. Plaintiff’s amended complaint raises two claims.
At the outset, the undersigned observes that the amended complaint contains no

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allegations against defendant Cooper. The Civil Rights Act under which this action was filed

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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) (“Congress did not intend § 1983

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liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no

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affirmative link between the incidents of police misconduct and the adoption of any plan or policy

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demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another

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to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative

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act, participates in another’s affirmative acts or omits to perform an act which he is legally

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required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588

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F.2d 740, 743 (9th Cir. 1978).
Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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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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(no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d

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438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert.

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denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of

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official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673

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F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal

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participation is insufficient).

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Defendant Cooper is dismissed because he is not linked to any of the alleged deprivations.

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In claim one, plaintiff alleges that he is Muslim. Plaintiff alleges that as the Food Service

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Supervisor, defendant Johnson is responsible for the preparation and delivery of all religious

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meals. Plaintiff alleges that during Ramadan, he did not receive his meals on time in the morning

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and that he received inappropriate non-Halal food and substandard food. These allegations state a

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potentially colorable claim for relief against defendant Johnson.

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In claim two, plaintiff alleges that in July 2021, he began having severe nose bloods.
Since July 2021, plaintiff has been to the hospital three separate times. During each hospital visit,
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plaintiff was told that he needed surgery on his nose. Plaintiff alleges that defendant Singh has

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denied plaintiff surgery for his nose since December 2022. These allegations state a potentially

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colorable claim for relief against defendant Singh.

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Although claims one and two state potentially colorable claims for relief, the undersigned

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finds that these claims are improperly joined for the reasons stated herein.

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Rule 21 of the Federal Rules of Civil Procedure provides:

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Misjoinder of parties is not a ground for dismissing an action. On
motion or on its own, the court may at any time, on just terms, add
or drop a party. The court may also sever any claim against a party.

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Fed. R. Civ. P. 21. Rule 20(a) provides that all persons may be joined in one action as defendants

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if “any right to relief is asserted against them jointly, severally, or in the alternative with respect

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to or arising out of the same transaction, occurrence, or series of transactions or occurrences” and

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“any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P.

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20(a)(2). See also George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims against

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unrelated defendants belong in different suits”). If unrelated claims are improperly joined, the

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court may dismiss them without prejudice. Fed. R. Civ. P. 21; 7 Alan Wright, Arthur Miller &

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Mary Kay Kane, Richard Marcus, Federal Practice and Procedure § 1684 (3d ed. 2012); Michaels

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Building Co. v. Ameritrust Co., 848 F.2d 674, 682 (6th Cir. 1988) (affirming dismissing under

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Rule 21 of certain defendants where claims against those defendants did not arise out of the same

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transaction or occurrences, as required by Rule 20(a)). Here, claims one and two are based on

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different incidents involving different defendants, and therefore are not properly joined in one

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action.

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Where parties have been misjoined, the court may drop a party or sever the claims against

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that party. Fed. R. Civ. P. 21. “[D]istrict courts who dismiss rather than sever must conduct a

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prejudice analysis, including ‘loss of otherwise timely claims if new suits are blocked by statutes

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of limitations.’” Rush v. Sport Chalet, Inc., 779 F.3d 973, 975 (9th Cir. 2015) (quoting DirecTV,

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Inc. v. Leto, 467 F.3d 842, 846-47 (3d Cir. 2006)). Here, because the unrelated claims appear to

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be based on relatively recent incidents, plaintiff will not be prejudiced by the dismissal of one of

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these claims from this action. Plaintiff may pursue such claim in a separate action. See also
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George, 507 F.3d at 607 (“Unrelated claims against unrelated defendants belong in different

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suits”).

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Accordingly, plaintiff is granted thirty days to file a second amended complaint

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addressing the pleading defects as to defendant Cooper and raising one of the claims raised in the

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amended complaint. In the alternative, within thirty days plaintiff may notify the court as to

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which of the two claims raised in the amended complaint on which he would like to proceed. If

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plaintiff opts to proceed on one of the claims raised in the amended complaint, the undersigned

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will order service of the defendant named in that claim and recommend dismissal of the other,

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improperly joined claim.

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Accordingly, IT IS HEREBY ORDERED that plaintiff is granted thirty days to either file

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a second amended complaint or to notify the court as to which of the two claims raised in the

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amended complaint on which he would like to proceed.

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Dated: May 22, 2023

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