Schoppe-Rico v. CDCR Director of Prisons et al
Filing
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ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge William Alsup on 8/31/11. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 9/2/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JOHN M. SCHOPPE-RICO,
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For the Northern District of California
United States District Court
ORDER OF DISMISSAL WITH
LEAVE TO AMEND
Plaintiff,
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NO. C 11-1089 WHA (PR)
v.
ROBERT A. HOREL, et al.,
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Defendants.
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INTRODUCTION
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Plaintiff, an California prisoner, filed a pro se civil rights complaint under 42 U.S.C.
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1983 against employees of the California Department of Corrections and Rehabilitation based
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on alleged violations of his constitutional rights when he was housed at Pelican Bay State
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Prison. Plaintiff filed an amended complaint on May 2, 2011, and he then filed a second
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amended complaint on June 27, 2011. The second amended complaint supercedes the prior
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complaints and is now the operative complaint in this action. See Ferdik v. Bonzelet, 963 F.2d
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1258, 1262 (9th Cir. 1992). Based upon a review of the second amended complaint pursuant to
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28 U.S.C. 1915A, it is dismissed with leave to amend.
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ANALYSIS
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A.
STANDARD OF REVIEW
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Federal courts must engage in a preliminary screening of cases in which prisoners seek
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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims
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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek
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monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro
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se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699
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(9th Cir. 1990).
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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the
statement need only '"give the defendant fair notice of what the . . . . claim is and the grounds
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upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted).
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Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a
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plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than
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labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
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For the Northern District of California
claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the
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United States District Court
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do. . . . Factual allegations must be enough to raise a right to relief above the speculative
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level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A
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complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id.
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at 1974.
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To state a claim under 42 U.S.C. 1983, a plaintiff must allege two essential elements:
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(1) that a right secured by the Constitution or laws of the United States was violated, and (2)
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that the alleged deprivation was committed by a person acting under the color of state law.
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West v. Atkins, 487 U.S. 42, 48 (1988).
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B.
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LEGAL CLAIMS
The original complaint was dismissed because it failed to allege where or when any of
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the 16 named defendants’ alleged actions took place, where they are located, or how any of
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them participated in or caused a violation of his rights. See Leer v. Murphy, 844 F.2d 628, 634
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(9th Cir. 1988). Plaintiff simply alleged in conclusory fashion that “each defendant participated
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in these violations,” but he alleged no specific actions by any individual defendant, let alone
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any actions that proximately caused a violation of plaintiff’s civil rights. The complaint was
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dismissed with leave to amend to cure these deficiencies.
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While the second amended complaint attempts to allege how the different defendants
violated his constitutional rights, it also has expanded the number and scope of claims, as well
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as the number of defendants, so that it contains a substantial number of improperly joined
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claims. "A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as
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independent or alternative claims, as many claims as it has against an opposing party." Fed. R.
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Civ. P. 18(a). The rules are somewhat different when, as here, there are multiple parties.
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Multiple parties may be joined as defendants in one action only "if any right to relief is asserted
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against them jointly, severally, or in the alternative with respect to or arising out of the same
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transaction, occurrence, or series of transactions or occurrences; and any question of law or fact
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common to all defendants will arise in the action." Id. at 20(a)(2). The upshot of these rules is
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that “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.” George v. Smith, 507 F.3d 605, 607
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For the Northern District of California
United States District Court
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(7th Cir. 2007). "Unrelated claims against different defendants belong in different suits." Ibid.
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The original complaint claimed that 16 different individual defendants acted with
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deliberate indifference to his safety, that they staged “gladiator-like” scenarios in which they
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ordered inmates to fight each other, joked about the potential for prison riots on racially
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integrated yards, failed to intervene in inmate fights, housed plaintiff in cruel conditions after
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riots broke out, and failed to provide him adequate medical care for his hand injuries. The
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second amended is greatly expanded in both the number and scope of claims. There are a total
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of 21 causes of actions against 24 named defendants and additional unnamed defendants. In
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addition to the claims of deliberate indifference to safety, abuse, harassment and inadequate
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medical claims set forth in the original complaint, plaintiff has added claims of retaliation,
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interfering with his rights to provide legal assistance to other inmates, freedom of association,
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endangering him by requiring him to become an informant, placing him in administrative
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segregation without due process, depriving him of sufficient outdoor exercise, conspiracy,
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inadequate living conditions, racial discrimination, access to courts, and disciplining him
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without due process. Plaintiff alleges that the majority of these violations of his rights were
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carried out by different defendants on different occasions, and they clearly do not all arise out
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of the same transaction, occurrence or series of occurrences, nor do they involve a common
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question of law or fact.
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"A buckshot complaint that would be rejected if filed by a free person – say, a suit
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complaining that A defrauded plaintiff, B defamed him, C punched him, D failed to pay a debt,
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and E infringed his copyright, all in different transactions – should be rejected if filed by a
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prisoner." Ibid. The instant complaint is a prime example of such a “buckshot” complaint in
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which plaintiff sues about a variety of disparate matters that he found objectionable over the
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course of his stay at Pelican Bay. Accordingly, the defendants and claims in the complaint are
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improperly joined.
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Although a court may strike individual claims that are not properly joined, it cannot be
omit. See Fed. R. Civ. P. 21. Thus, instead of dismissing certain claims and defendants, the
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For the Northern District of California
determined here which of the many claims plaintiff may wish to keep and which he wants to
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United States District Court
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second amended complaint is now dismissed with leave to file a third amended complaint. The
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third amended complaint must comply with Federal Rules of Civil Procedure 18 and 20
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concerning joinder of claims and defendants, and if it does not then this action will be
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dismissed. It is noted that plaintiff knows that it is improper to join unrelated claims against
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different defendants in a single action. He was informed of these rules in a prior case in which
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he filed the same type of “buckshot” complaint filed here, which complaint was dismissed with
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leave to amend for improper joinder. See Schoppe-Rico v. Littlemon, No. C 09-0321 JSW(PR)
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(Order of Dismissal, Feb. 2, 2011). Plaintiff should not continue to file pleadings with
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improperly joined claims. If plaintiff chooses to file a third amended complaint in this case, and
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it suffers from improper joinder, this case will be dismissed without further opportunity to
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amend.
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CONCLUSION
1. The complaint is DISMISSED with leave to amend, as indicated above, within thirty
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days from the date of this order. The amended complaint must include the caption and civil
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case number used in this order (No. C 11-1089 WHA (PR)) and the words THIRD AMENDED
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COMPLAINT on the first page. Because an amended complaint completely replaces the prior
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pleadings, plaintiff may not incorporate material from the prior pleadings by reference but must
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include in the third amended complaint all the claims and allegations he wishes to present. See
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Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Failure to amend within the
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designated time and in accordance with this order will result in the dismissal of this action.
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2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court
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informed of any change of address by filing with the clerk a separate paper headed “Notice of
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Change of Address.” Papers intended to be filed in this case should be addressed to the clerk
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and not to the undersigned. Plaintiff also must comply with all orders in a timely fashion.
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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to
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Federal Rule of Civil Procedure 41(b).
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3. Plaintiff has filed a motion for an extension of time in which to file a motion for a
preliminary injunction. There is no deadline for such a motion, so his motion (docket number
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For the Northern District of California
United States District Court
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13) is DENIED as unnecessary.
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4. The motion for appointment of counsel (docket number 11) is DENIED for the same
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reasons plaintiff’s prior motion for appointment of counsel was denied. Plaintiff should not file
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any further motions for appointment of counsel. Should the circumstances of this case so
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warrant at a later date, this case will be referred for location of pro bono counsel.
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IT IS SO ORDERED.
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Dated: August
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, 2011.
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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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G:\PRO-SE\WHA\CR.11\SCHOPPERICO1089.LTA2.wpd
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