Warner v. Cate et al

Filing 4

ORDER OF DISMISSAL WITH LEAVE TO AMEND re 1 Complaint, filed by Earl Warner. Signed by Judge Yvonne Gonzalez Rogers on 5/1/14. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 5/1/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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Plaintiff,

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ORDER OF DISMISSAL WITH LEAVE
TO AMEND

vs.

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No. C 12-06163 YGR (PR)

EARL WARNER,

MATTHEW L. CATE, et al.,
Defendants.

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/

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INTRODUCTION
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Plaintiff filed this pro se civil rights complaint under 42 U.S.C. § 1983. He has been granted
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leave to proceed in forma pauperis in a separate written Order.
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The Court now conducts its initial review of the complaint pursuant to 28 U.S.C. § 1915A.
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DISCUSSION
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I.

Standard of Review

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A federal court must conduct a preliminary screening in any case in which a prisoner seeks
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redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
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§ 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that
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are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary
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relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2). Pro se
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pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d
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696, 699 (9th Cir. 1988).
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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the
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claim showing that the pleader is entitled to relief." To comport with Rule 8, "[s]pecific facts are not
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necessary; the statement need only give the defendant fair notice of what the . . . claim is and the
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grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (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 labels

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and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . .

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Factual allegations must be enough to raise a right to relief above the speculative level." Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must proffer

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"enough facts to state a claim to relief that is plausible on its face." Id. at 570. The United States

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Supreme Court has explained the "plausible on its face" standard of Twombly: "While legal

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conclusions can provide the complaint's framework, they must be supported by factual allegations.

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When there are well-pleaded factual allegations, a court should assume their veracity and then

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determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S.

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662, 679 (2009).

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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) that the

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

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U.S. 42, 48 (1988).

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A supervisor may be liable under § 1983 upon a showing of personal involvement in the

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constitutional deprivation or a sufficient causal connection between the supervisor's wrongful

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conduct and the constitutional violation. Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th

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Cir. 1991) (en banc) (citation omitted). A supervisor therefore generally "is only liable for

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constitutional violations of his subordinates if the supervisor participated in or directed the

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violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d

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1040, 1045 (9th Cir. 1989). This includes evidence that a supervisor implemented "a policy so

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deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the

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constitutional violation." Redman, 942 F.2d at 1446; see Jeffers v. Gomez, 267 F.3d 895, 917 (9th

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Cir. 2001).

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II.

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Exhaustion
A question which must be answered before Plaintiff can proceed with his claims is whether

he has exhausted available administrative remedies with respect to each claim.

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The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996)

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("PLRA"), amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to

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prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any

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jail, prison, or other correctional facility until such administrative remedies as are available are

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exhausted." 42 U.S.C. § 1997e(a). Under this section, an action must be dismissed unless the

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prisoner exhausted his available administrative remedies before he filed suit, even if the prisoner

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fully exhausts while the suit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.

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2002). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether

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they involve general circumstances or particular episodes, and whether they allege excessive force

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or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion of all "available"

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remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain,

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speedy and effective." Id. at 524; Booth v. Churner, 532 U.S. 731, 739-40 & n.5 (2001). Even

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when the prisoner seeks relief not available in grievance proceedings, notably money damages,

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exhaustion is a prerequisite to suit. Id. at 741. The purposes of the exhaustion requirement include

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allowing the prison to take responsive action, filtering out frivolous cases and creating an

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administrative record. See Porter, 534 U.S. at 525.

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A prisoner's concession to nonexhaustion is a valid ground for dismissal, so long as no

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exception to exhaustion applies. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.), cert. denied, 540

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U.S. 810 (2003). Accordingly, a claim may be dismissed without prejudice if it is clear from the

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record that the prisoner has conceded that he did not exhaust administrative remedies. Id.

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The State of California provides its inmates and parolees the right to appeal administratively

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"any departmental decision, action, condition or policy perceived by those individuals as adversely

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affecting their welfare." See Cal. Code Regs. tit. 15, § 3084.1(a). It also provides its inmates the

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right to file administrative appeals alleging misconduct by correctional officers. See id. § 3084.1(e).

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In order to exhaust available administrative remedies within this system, a prisoner must proceed

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through several levels of appeal: (1) informal resolution, (2) formal written appeal on a CDC 602

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inmate appeal form, (3) second level appeal to the institution head or designee, and (4) third level

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appeal to the Director of the California Department of Corrections and Rehabilitation. See id.

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§ 3084.5; Barry v. Ratelle, 985 F. Supp. 1235, 1237 (S.D. Cal. 1997). This satisfies the

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administrative remedies exhaustion requirement under § 1997e(a). See id. at 1237-38.

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Here, the record is unclear whether Plaintiff exhausted his claims to the Director's level

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before filing his federal complaint. Plaintiff did not use the Court's civil rights complaint form;

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therefore, he lacks information relating to exhaustion of his administrative remedies. Plaintiff

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contends that he had "utilized" the prison's appeals process "at each requisit[e] ava[ila]ble level of

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review"; however, he claims that it was an "exercise in futility." (Compl. at 39.) Plaintiff's

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allegations are conclusory because he does not support them with additional information relating to

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these appeals, i.e., the dates they were submitted or the specific claims that he attempted to exhaust.

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It thus appears Plaintiff has not exhausted his administrative remedies as required by 42 U.S.C.

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§ 1997e(a).

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Accordingly, it appears that Plaintiff's claims are unexhausted and subject to dismissal.

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Therefore, Plaintiff's complaint is DISMISSED with leave to amend his complaint to prove that he

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exhausted all of his claims against each Defendant before he filed this action. If Plaintiff did

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exhaust his administrative remedies with respect to any or all of those claims before filing this

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action, he may amend his complaint to so allege, as set forth below.

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III.

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Federal Rule of Civil Procedure 20
As explained above, Plaintiff complaint was not submitted on the Court's civil rights

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complaint form. Instead, it is a type-written complaint that is forty-three pages long. It contains

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multiple legal claims and names fifteen Defendants. The complaint is broad, and appears to touch

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upon multiple acts by Defendants that Plaintiff found objectionable between April 2010 through

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January 2011.

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The complaint alleges several claims that are not properly joined under Federal Rule of Civil

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Procedure 20(a) concerning joinder of claims and defendants. Rule 20(a) provides that all persons

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"may be joined in one action as defendants if there is asserted against them jointly, severally, or in

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the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or

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series of transactions or occurrences and if any question of law or fact common to all defendants will

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arise in the action." As described above, Plaintiff's claims cover a broad array of different incidents

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by different individuals over the course of approximately nine months. In his Amended Complaint,

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

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

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therein. Plaintiff may not include in a single complaint everything that has happened to him over a

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nine-month period that he finds objectionable. He must choose what claims he wants to pursue that

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meet the joinder requirements; if he asserts improperly joined claims in his Amended Complaint,

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they will be dismissed.

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IV.

Defendants

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Plaintiff must allege facts sufficient to show that the remaining named Defendants' actions

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rise to the level of constitutional violations. As mentioned above, he is attempting to hold fifteen

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named Defendants liable for the claims in his complaint; therefore, he must allege facts showing

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what each defendant did that violated his constitutional rights. See Leer v. Murphy, 844 F.2d 628,

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634 (9th Cir. 1988) (sweeping conclusory allegations will not suffice; the plaintiff must instead set

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forth specific facts as to each individual defendant's actions which violated his or her rights). In

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addition, if Plaintiff claims that any of the named Defendants are liable as supervisors, he must

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allege that these Defendants "participated in or directed the violations, or knew of the violations and

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failed to act to prevent them." Taylor, 880 F.2d at 1045. In his Amended Complaint, Plaintiff must

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link all of the named Defendants to his claims, and no claim for damages can proceed unless

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Plaintiff does so.

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In sum, the Court will allow Plaintiff leave to prepare a proper Amended Complaint that is

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consistent with federal pleading standards. Plaintiff is advised that for each claim, he must, to the

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best of his ability, specifically identify each Defendant, and specify what constitutional right he

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believes each Defendant has violated. Importantly, Plaintiff must allege facts regarding the conduct

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of each Defendant that he asserts gives rise to that Defendant's liability. A person deprives another

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of a constitutional right within the meaning of 42 U.S.C. §1983 if he does an affirmative act,

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participates in another's affirmative act or omits to perform an act which he is legally required to do,

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that causes the deprivation of which the plaintiff complains. Leer, 844 F.2d at 633. There can be no

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liability under § 1983 unless there is some affirmative link or connection between a defendant's

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actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633

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F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978).

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Plaintiff is reminded that his claims must be set forth in short and plain terms, simply,

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concisely and directly pursuant to Federal Rule of Civil Procedure 8 or risk dismissal. See McHenry

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v. Renne, 84 F.3d 1172, 1177, 1177-78 (9th Cir. 1996) (affirming Rule 8 dismissal of complaint that

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was "argumentative, prolix, replete with redundancy, and largely irrelevant"). To facilitate this, the

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Court directs Plaintiff to limit his Amended Complaint to forty (40) pages. In addition, Plaintiff

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must use the Court's civil rights complaint form, which will be provided to him. If Plaintiff fails to

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comply with these straightforward pleading requirements, the Court will dismiss Plaintiff's proposed

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Amended Complaint. See id.

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

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Plaintiff's complaint is DISMISSED with leave to amend in order to give him the

opportunity to file a simple, concise and direct Amended Complaint which:
a.

States clearly and simply each claim he seeks to bring in federal court as

required under Rule 8, and he should:

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i.

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ii.
Identify each Defendant and the specific action or actions
each Defendant took, or failed to take, that allegedly caused the
deprivation of Plaintiff's constitutional rights; and

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iii.

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b.

Set forth each claim in a separate numbered paragraph;

Identify the injury resulting from each claim;

Explains how he has exhausted his administrative remedies as to each claim

as against each Defendant before he filed this action;
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Only alleges those claims that are properly joined under Rule 20(a)

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(concerning joinder of claims and Defendants) or, stated differently, because Plaintiff may not list

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everything that has happened to him over a nine-month period in prison that he finds objectionable,

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the Amended Complaint may only allege claims that:

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i.
Arise out of the same transaction, occurrence, or series of
transactions or occurrences; and

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ii.

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d.

Present questions of law or fact common to all Defendants;

Does not make conclusory allegations linking each Defendant by listing them

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as having "direct involvement" to his claims without specifying how each Defendant was linked

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through their actions;

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e.

Does not name any Defendant who did not act but is linked solely in his or

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her respondent superior capacity or against whom Plaintiff cannot allege facts that would establish

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supervisorial liability; and

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3.

Within twenty-eight (28) days from the date of this Order, Plaintiff shall file his

Amended Complaint as set forth above. Plaintiff must use the attached civil rights form, write the

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case number for this action -- Case No. C 12-6163 YGR (PR) -- on the form, clearly label the

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complaint "Amended Complaint," and complete all sections of the form. Because the Amended

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Complaint completely replaces the original complaint, Plaintiff must include in it all the claims he

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wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S. 915

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(1992). He may not incorporate material from the original complaint by reference. If Plaintiff

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wishes to attach any additional pages to the civil rights form, he shall maintain the same format as

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the form, i.e., answer only the questions asked in the "Exhaustion of Administrative Remedies"

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section without including a narrative explanation of each grievance filed. Plaintiff's Amended

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Complaint shall not exceed forty (40) pages in length. Plaintiff's failure to file his Amended

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Complaint by the twenty-eight-day deadline or to correct the aforementioned deficiencies

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outlined above will result in the dismissal of this action without prejudice.

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4.

It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court

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informed of any change of address and must comply with the Court's orders in a timely fashion.

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Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes

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while an action is pending must promptly file a notice of change of address specifying the new

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address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail

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directed to the pro se party by the Court has been returned to the Court as not deliverable, and

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(2) the Court fails to receive within sixty days of this return a written communication from the pro

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se party indicating a current address. See L.R. 3-11(b).

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5.

Extensions of time are not favored, though reasonable extensions will be granted.

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Any motion for an extension of time must be filed no later than fourteen (14) days prior to the

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deadline sought to be extended.

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6.

The Clerk of the Court shall send Plaintiff a blank civil rights form along with a copy

of this Order.
IT IS SO ORDERED.
DATED:

May 1, 2014
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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