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)

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