Ortiz v. Cate et al

Filing 5

ORDER Dismissing Case with Leave to Amend. Signed by Judge William Alsup on 06/30/11. (Attachments: # 1 Certificate of Service)(rbe, COURT STAFF) (Filed on 7/1/2011)

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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 JAMAL DANWELL ORTIZ, NO. C 11-2380 WHA (PR) 7 Plaintiff, ORDER DISMISSING CASE WITH LEAVE TO AMEND 8 v. 9 11 For the Northern District of California United States District Court 10 12 MATTHEW L. CATE; D. FOSTION; D. STARK; G.D. LEWIS; P.T. SMITH; CRUISE; R. BELL; M.J. NIMROD; DR. GLINES; V. COMPELLO; OFFICER TRIMM; OFFICER CARDENAS, 13 Defendants. / 14 15 INTRODUCTION 16 Plaintiff, an inmate at Pelican Bay State Prison proceeding pro se, filed this civil rights 17 action pursuant to 42 U.S.C. 1983. He has been granted leave to proceed in forma pauperis in a 18 separate matter. Based upon a review of the complaint pursuant to 28 U.S.C. 1915A, it is 19 dismissed with leave to amend. 20 21 DISCUSSION A. STANDARD OF REVIEW 22 Federal courts must engage in a preliminary screening of cases in which prisoners seek 23 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 24 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims 25 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek 26 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro 27 se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 28 (9th Cir. 1990). 1 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 4 upon which it rests."'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). 5 Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a 6 plaintiff's obligation to provide the 'grounds of his 'entitle[ment] to relief' requires more than 7 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 8 do. . . . Factual allegations must be enough to raise a right to relief above the speculative 9 level." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A 10 complaint must proffer "enough facts to state a claim for relief that is plausible on its face." Id. 11 For the Northern District of California claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the 3 United States District Court 2 at 1974. 12 To state a claim under 42 U.S.C. 1983, a plaintiff must allege two essential elements: 13 (1) that a right secured by the Constitution or laws of the United States was violated, and (2) 14 that the alleged deprivation was committed by a person acting under the color of state law. 15 West v. Atkins, 487 U.S. 42, 48 (1988). 16 B. 17 LEGAL CLAIMS The complaint contains a substantial number of improperly joined claims. "A party 18 asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or 19 alternative claims, as many claims as it has against an opposing party." Fed. R. Civ. P. 18(a). 20 The rules are somewhat different when, as here, there are multiple parties. Multiple parties may 21 be joined as defendants in one action only "if any right to relief is asserted against them jointly, 22 severally, or in the alternative with respect to or arising out of the same transaction, occurrence, 23 or series of transactions or occurrences; and any question of law or fact common to all 24 defendants will arise in the action." Id. at 20(a)(2). 25 The upshot of these rules is that “multiple claims against a single party are fine, but 26 Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 27 2.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). "Unrelated claims against different 28 defendants belong in different suits." Ibid. 2 1 The complaint is over a hundred pages long and has more than a hundred more pages of different prison officials: that window coverings and a jumpsuit required for his committing 4 indecent exposure constitutes cruel and unusual punishment; that the imposition of these 5 measures for more than 180 days violates liberty interest protected by due process; that prison 6 officials have denied his inmate appeals violates his First Amendment rights; that prison 7 psychologists interfered his first amendment rights to file administrative appeals and due 8 process rights to a fair and impartial hearing; that he has been denied adequate access to the law 9 library by unnamed officials; that he has suffered retaliation for mailing a letter to the Prison 10 Law Office and filing complaints against staff; that he has been subject to sexual harassment; 11 For the Northern District of California exhibits. The following is a sample of the wide range of claims plaintiff asserts against twelve 3 United States District Court 2 that he has received inadequate dental care; that unspecified prison officials have engaged in a 12 “code of silence” in which they fail to report misconduct when they witness it; that he has not 13 received adequate psychological care for his exhibitionism. 14 As alleged, these claims against multiple parties do not arise out of the same 15 transaction, occurrence or series of occurrences, and do not involve a common question of law 16 or fact. The complaint is simply a recitation of seemingly all the things that people have 17 plaintiff has found objectionable since his arrival at Pelican Bay State Prison. "A buckshot 18 complaint that would be rejected if filed by a free person – say, a suit complaining that A 19 defrauded plaintiff, B defamed him, C punched him, D failed to pay a debt, and E infringed his 20 copyright, all in different transactions – should be rejected if filed by a prisoner." Ibid. 21 Accordingly, the Court finds the defendants improperly joined. 22 Although a court may strike individual claims that are not properly joined, the Court 23 cannot here determine which of the many claims Plaintiff may wish to keep and which he wants 24 to omit. See Fed. R. Civ. P. 21. Thus, instead of dismissing certain claims and defendants, the 25 Court now dismisses the amended complaint with leave to file an amended complaint. The 26 amended complaint must comply with Federal Rules of Civil Procedure 18 and 20 concerning 27 joinder of claims and defendants, and if it does not then this action will be dismissed. 28 CONCLUSION 3 1 1. The complaint is DISMISSED with leave to amend, as indicated above, within thirty 2 days from the date of this order. The amended complaint must include the caption and civil 3 case number used in this order (No. C 11-2380 WHA (PR)) and the words AMENDED 4 COMPLAINT on the first page. Because an amended complaint completely replaces the 5 original complaint, plaintiff must include in it all the claims he wishes to present. See Ferdik v. 6 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). He may not incorporate material from the 7 original complaint by reference. Failure to amend within the designated time and in accordance 8 with this order will result in the dismissal of these claims. 9 2. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the court informed of any change of address by filing with the clerk a separate paper headed “Notice of 11 For the Northern District of California United States District Court 10 Change of Address.” Papers intended to be filed in this case should be addressed to the clerk 12 and not to the undersigned. Petitioner also must comply with the Court's orders in a timely 13 fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 14 pursuant to Federal Rule of Civil Procedure 41(b). 15 IT IS SO ORDERED. 16 Dated: June 30 , 2011. 17 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\WHA\CR.11\ORTIZ2380.LTA.wpd 4

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