Weaver v. Hennessey et al

Filing 9

ORDER OF DISMISSAL WITH LEAVE TO AMEND 2 5 7 (Illston, Susan) (Filed on 5/19/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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GREENIE ANTHONY WEAVER
a/k/a JEROME WEAVER,

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ORDER OF DISMISSAL WITH
LEAVE TO AMEND

Plaintiff,

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No. C 12-895 SI (pr)

v.
MICHAEL HENNESSEY /
ROSS MIRKARIMI; et al.,
Defendants.
/
INTRODUCTION

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Greenie Anthony Weaver a/k/a Jerome Weaver, an inmate at the San Francisco County

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Jail, filed this pro se civil rights action under 42 U.S.C. § 1983. His complaint is now before the

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court for review under 28 U.S.C. § 1915.

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BACKGROUND
This is one of two actions Weaver filed on the same day. The other action, Weaver v.
Hennessey, No. C 12-896 SI, concerns an alleged overstay at the San Francisco County Jail.

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In this complaint, Weaver complains of an assortment of problems at the San Francisco

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County Jail. He alleges that he is being denied access to the law library, legal materials, and

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legal supplies; that he is being denied outdoor recreation; that he is being denied adequate

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ventilation; that he is being denied one hot meal per day without cross-contamination; that the

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food is being handled and transported in an unsanitary manner; that he is not receiving proper

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medical treatment for his broken nose; that his legal mail is not being properly handled; and that

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phone calls and the commissary are expensive.

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DISCUSSION

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A.

Review of Complaint
A federal court must engage in a preliminary screening of any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity. See

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28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss

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United States District Court
For the Northern District of California

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any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted,

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or seek monetary relief from a defendant who is immune from such relief. See id. at § 1915A(b).

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Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d

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696, 699 (9th Cir. 1990).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that

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a right secured by the Constitution or laws of the United States was violated and (2) that the

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violation was committed by a person acting under the color of state law. See West v. Atkins, 487

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U.S. 42, 48 (1988).

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Although a plaintiff is not required to plead "specific factual details not ascertainable in

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advance of discovery," Gibson v. United States, 781 F.2d 1334, 1340 (9th Cir. 1986), he does

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not state a claim under 42 U.S.C. § 1983 if the allegations in the complaint are mere conclusions,

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Kennedy v. H & M Landing, Inc., 529 F.2d 987, 989 (9th Cir. 1976). A complaint must contain

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sufficient allegations to put defendants fairly on notice of the claims against them. McKeever

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v. Block, 932 F.2d 795, 798 (9th Cir. 1991). A complaint that fails to state the specific acts of

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the defendant which violated the plaintiff's rights fails to meet the notice requirements of Federal

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Rule of Civil Procedure 8(a). Hutchinson v. United States, 677 F.2d 1322, 1328 n.5 (9th Cir.

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1982).

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Weaver's complaint is too short on details for the court to determine whether any of his

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constitutional rights may have been violated. He makes sweeping generalizations such as his
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contentions that there is "unsanitary" handling and transportation of the food, and that there is

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not "adequate" ventilation. Docket # 1, p. 3. The complaint also doesn't identify the dates on

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which any events occurred, who the alleged wrongdoers were, or whether he was actually

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harmed by any of the events. Weaver must file an amended complaint. His amended complaint

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must cure the deficiencies addressed below.
First, he must state each claim separately in his amended complaint. For each claim, he

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must allege the facts showing his entitlement to relief from the defendants. With some effort,

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Weaver can state his claims for relief such that they will be short and plain statements of each

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claim, rather than the laundry list of generalized grievances that is in the original complaint. For

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United States District Court
For the Northern District of California

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example, if he claims he received inadequate food, he should allege the date(s) on which he

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received inadequate food, who caused him to be served inadequate food, and describe how the

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food was inadequate. By way of further example, if he claims the exercise facilities are

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inadequate, he could allege the particular details that show that the exercise facilities are

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inadequate, allege the date(s) on which he was subjected to those inadequate conditions, and

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allege who caused him to be subjected to the inadequate exercise facilities.

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Second, the amended complaint must identify (in each claim) each and every defendant

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who Weaver proposes to hold liable on that claim. For example, if Weaver wants to claim that

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he was denied adequate food, he should identify each person who provided the inadequate food

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or failed to provide the adequate food. Weaver must be careful to allege facts showing the basis

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for liability for each individual defendant. He should not refer to them as a group (e.g. "the

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defendants"); rather, he should identify each involved defendant by name and link each of them

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to his claim by explaining what each defendant did or failed to do that caused a violation of his

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constitutional rights. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (liability may be

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imposed on individual defendant under § 1983 only if plaintiff can show that defendant

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proximately caused deprivation of federally protected right). Weaver is cautioned that there is

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no respondeat superior liability under § 1983, i.e. no liability under the theory that one is

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responsible for the actions or omissions of an employee. Liability under § 1983 arises only upon

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a showing of personal participation by the defendant. Taylor v. List, 880 F.2d 1040, 1045 (9th
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Cir. 1989). A supervisor may be liable under § 1983 upon a showing of (1) personal

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involvement in the constitutional deprivation or (2) a sufficient causal connection between the

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supervisor's wrongful conduct and the constitutional violation. See Starr v. Baca, 652 F.3d

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1202, 1207 (9th Cir. 2011); Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir.

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1991) (en banc). A supervisor therefore generally "is only liable for constitutional violations of

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his subordinates if the supervisor participated in or directed the violations, or knew of the

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violations and failed to act to prevent them." Taylor, 880 F.2d 1040, 1045 (9th Cir. 1989). In

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his amended complaint, Weaver must allege facts showing a basis for liability for the sheriff or

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other supervisory personnel he includes as defendants.

United States District Court
For the Northern District of California

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Third, the complaint fails to state a claim for denial of access to the courts. A

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constitutional right of access to the courts exists, but to establish a claim for any violation of the

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right of access to the courts, the prisoner must show that there was an inadequacy in the prison's

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legal access program that caused him an actual injury. See Lewis v. Casey, 518 U.S. 343, 350-

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51 (1996). To prove an actual injury, the prisoner must show that the inadequacy hindered him

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in presenting a non-frivolous claim concerning his conviction or conditions of confinement. See

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id. at 355. Examples of impermissible hindrances include: a prisoner whose complaint was

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dismissed for failure to satisfy some technical requirement which, because of deficiencies in the

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prison's legal assistance facilities, he could not have known; and a prisoner who had "suffered

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arguably actionable harm" that he wished to bring to the attention of the court, but was so

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stymied by the inadequacies of the prison's services that he was unable even to file a complaint.

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See id. at 351. Weaver has not identified any actual injury, as he must to state a claim for a

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denial of access to the courts based on a denial of assistance and supplies. In his amended

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complaint, Weaver must cure this pleading deficiency. He also needs to link defendants to this

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claim, as discussed in the preceding paragraph.

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Fourth, the complaint has claims that may not be properly joined under Federal Rule of

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Civil Procedure 20(a). Rule 20(a) provides that all persons may be joined in one action as

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defendants if "any right to relief is asserted against them jointly, severally, or in the alternative

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with respect to or arising out of the same transaction, occurrence, or series of transactions or
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occurrences" and if "any question of law or fact common to all defendants will arise in the

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action." Weaver's complaint concerns different incidents that may not be connected, although

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their relatedness (or lack thereof) cannot be determined at this time because of the absence of

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factual details about the claims and defendants' involvement therein. In his amended complaint,

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Weaver may only allege claims that (a) arise out of the same transaction, occurrence, or series

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of transactions or occurrences and (b) present questions of law or fact common to all defendants

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named therein. Weaver needs to choose what claims he wants to pursue that meet the joinder

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requirements.
Fifth, it is unclear from the complaint whether Weaver was a pretrial detainee or a convict

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United States District Court
For the Northern District of California

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at the relevant times. His status affects the constitutional provision under which his claims arise:

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a pretrial detainee's claims about conditions of confinement arise under the Fourteenth

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Amendment's Due Process Clause, while a convict's claims arise under the Eighth Amendment's

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Cruel and Unusual Punishment Clause. Even though pretrial detainees' claims arise under the

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Due Process Clause, the Eighth Amendment serves as a benchmark for evaluating those claims.

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See Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996). In his amended complaint, he must

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state whether he was a pretrial detainee or had been convicted as of the relevant time(s).

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B.

Miscellaneous Matters

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Weaver has requested that counsel be appointed to assist him in this action. A district

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court has the discretion under 28 U.S.C. §1915(e)(1) to designate counsel to represent an

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indigent civil litigant in exceptional circumstances. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986). This requires an evaluation of both the likelihood of success on the merits

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and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal

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issues involved. See id. Neither of these factors is dispositive and both must be viewed together

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before deciding on a request for counsel under § 1915(e)(1). Here, exceptional circumstances

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requiring the appointment of counsel are not evident. The request for appointment of counsel

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is DENIED. (Docket # 2.)

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Within six weeks of filing his complaint, Weaver filed a "motion to add following
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statements of facts" and a "motion to amend defendants and statement of facts." (Docket # 5,

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# 7.) The motions are DENIED as unnecessary. By this order, the court has dismissed the

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complaint and given specific instructions for the amended complaint Weaver must file. Those

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instructions apply to the claims and defendants mentioned in his motions to add and amend.
The two efforts to amend within six weeks of filing the complaint suggest that plaintiff

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is adding claims as they pop into his head. That is unwise for several reasons. The more claims

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he adds, the more difficult this case will be for him to litigate. Additionally, the claims and

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defendants have to be properly joined or they will be dismissed from the action. Finally –

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although it is not a pleading requirement – a prisoner must exhaust administrative remedies

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United States District Court
For the Northern District of California

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before filing a civil rights action in federal court. See 42 U.S.C. § 1997e(a) ("[n]o action shall

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be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law,

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by a prisoner confined in any jail, prison, or other correctional facility until such administrative

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remedies as are available are exhausted"). Adding claims as the events in jail unfold makes it

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quite likely that Weaver will have exhaustion problems later in this action.

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In Weaver's "motion to add following statement of facts" (Docket # 5), he appears to

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complain about, among other things, the duration of his present incarceration. Habeas is the

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exclusive remedy for the prisoner who seeks “‘immediate or speedier release’” from

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confinement by challenging the fact or duration of his confinement. Skinner v. Switzer, 131 S.

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Ct. 1289, 1293 (2011) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)); Preiser v.

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Rodriguez, 411 U.S. 475, 500 (1973). If Weaver wants to challenge the length of his sentence,

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he may file a federal petition for writ of habeas corpus, but only after exhausting state court

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remedies for every claim he seeks to present in his federal petition.

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CONCLUSION

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For the foregoing reasons, the complaint is dismissed with leave to amend. The amended

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complaint must be filed no later than June 29, 2012, and must include the caption and civil case

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number used in this order and the words AMENDED COMPLAINT on the first page. Plaintiff

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is cautioned that his amended complaint must be a complete statement of his claims and will
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supersede existing pleadings. See London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.

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1981) ("a plaintiff waives all causes of action alleged in the original complaint which are not

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alleged in the amended complaint.") Failure to file the amended complaint by the deadline will

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result in the dismissal of the action.

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Plaintiff's motions to amend and add facts are DENIED as unnecessary. (Docket # 5, #

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7.) Plaintiff filed two actions on the same day. He is cautioned that he should not allege the

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same claims in this action that he has alleged in the other action.

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Plaintiff's request for appointment of counsel is DENIED. (Docket # 2.)

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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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Dated: May 19, 2012

_______________________
SUSAN ILLSTON
United States District Judge

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