Rhodes v. Ohta et al

Filing 21

ORDER OF DISMISSAL. Motions terminated: 18 MOTION to Amend/Correct filed by Kavin Maurice Rhodes, 17 MOTION for Recusal filed by Kavin Maurice Rhodes. Signed by Judge Phyllis J. Hamilton on 7/24/2017. (pjhlc3, COURT STAFF) (Filed on 7/24/2017) (Additional attachment(s) added on 7/24/2017: # 1 Certificate/Proof of Service) (kcS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KAVIN MAURICE RHODES,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-06805-PJH
ORDER OF DISMISSAL

v.

Re: Dkt. Nos. 17, 18
SAM OHTA, et al.,
Defendants.

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C.

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§ 1983. The second amended complaint was dismissed with leave to amend and plaintiff

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has filed a third amended complaint (Docket No. 19).
DISCUSSION

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STANDARD OF REVIEW

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Federal courts must engage in a preliminary screening of cases in which prisoners

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seek redress from a governmental entity or officer or employee of a governmental entity.

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

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dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief

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may be granted, or seek monetary relief from a defendant who is immune from such

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relief. Id. at 1915A(b)(1),(2). Pro se pleadings must be liberally construed. Balistreri v.

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Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement

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of the claim showing that the pleader is entitled to relief." "Specific facts are not

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necessary; the statement need only '"give the defendant fair notice of what the . . . . claim

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is and the grounds upon which it rests."'" Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(citations omitted). Although in order to state a claim a complaint “does not need detailed

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factual allegations, . . . a plaintiff's obligation to provide the 'grounds’ of his 'entitle[ment]

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to relief' requires more than labels and conclusions, and a formulaic recitation of the

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elements of a cause of action will not do. . . . Factual allegations must be enough to

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raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550

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U.S. 544, 555 (2007) (citations omitted). A complaint must proffer "enough facts to state

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

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Court has recently explained the “plausible on its face” standard of Twombly: “While legal

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conclusions can provide the framework of a complaint, they must be supported by factual

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allegations. When there are well-pleaded factual allegations, a court should assume their

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United States District Court
Northern District of California

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veracity and then determine whether they plausibly give rise to an entitlement to relief.”

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Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was

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violated, and (2) that the alleged deprivation was committed by a person acting under the

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color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

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LEGAL CLAIMS

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Plaintiff presents many allegations of mistreatment and violations of his rights by

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correctional officers, prison officials, attorneys and judges at two prisons over the course

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of several years.

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Pursuant to Fed. R. Civ. P. 8(a)(2), a plaintiff must provide “a short and plain

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statement of the claim showing that the pleader is entitled to relief....” Rule 8 requires

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

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McKeever v. Block, 932 F.2d 795, 798 (9th Cir.1991)). Accord Richmond v. Nationwide

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Cassel L.P., 52 F.3d 640, 645 (7th Cir.1995) (amended complaint with vague and scanty

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allegations fails to satisfy the notice requirement of Rule 8.) “The propriety of dismissal

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for failure to comply with Rule 8 does not depend on whether the complaint is wholly

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without merit,” McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996).
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Moreover, “[M]ultiple claims against a single party are fine, but Claim A against

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Defendant 1 should not be joined with unrelated Claim B against Defendant 2.” George

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v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). “Unrelated claims against different

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defendants belong in different suits,” not only to prevent the sort of “morass” that a multi-

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claim, multi-defendant suit can produce, “but also to ensure that prisoners pay the

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required filing fees – for the Prison Litigation Reform Act limits to 3 the number of

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frivolous suits or appeals that any prisoner may file without prepayment of required fees.”

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Id. (citing 28 U.S.C. § 1915(g)).

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The third amended complaint is 51 pages and names approximately 58
defendants. Plaintiff presents allegations concerning events at two different prisons over

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United States District Court
Northern District of California

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the course of several years. He also names as defendants several attorneys, including

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deputy attorneys general who litigated his previous cases and a superior court judge.

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Plaintiff alleges that all defendants are engaged in a multi-district racketeering conspiracy

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to retaliate against plaintiff for the filing of a prior federal civil rights lawsuit. He also

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raises many other claims and violations of the Racketeer Influenced and Corrupt

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Organizations (“RICO”) Act.

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The majority of plaintiff’s allegations concern conduct that occurred at Kern Valley

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State Prison, which lies in the Eastern District of California. Plaintiff presents allegations

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that occurred between February 1, 2014 and August 30, 2016 at Kern Valley State Prison

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that were committed by more than 30 defendants who were employed at that facility. He

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also alleges that several attorneys and a judge retaliated against plaintiff while he

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pursued a prior federal action. Plaintiff’s complaint also contains allegations against

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several defendants who were employed at Pelican Bay State Prison (“PBSP”), which is in

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this district. Plaintiff alleges that the PBSP defendants violated his rights after he was

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transferred to that facility on August 30, 2016.

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Plaintiff’s complaint in this action illustrates the “unfair burdens” imposed by

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complaints, “prolix in evidentiary detail, yet without simplicity, conciseness and clarity”

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which “fail to perform the essential functions of a complaint.” McHenry, 84 F.3d at 11793

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80. Plaintiff has also presented many unrelated claims. The first and second amended

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complaints were dismissed with leave to amend to focus on the events that occurred at

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PBSP. Plaintiff was informed that the allegations that occurred during plaintiff’s

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incarceration at Kern Valley State Prison and elsewhere were dismissed from this action

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without prejudice. Plaintiff could file a case or cases concerning these events in the

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district or districts where they occurred. Plaintiff was also informed that his RICO claim

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was dismissed from this action and he should only discuss the claims against the PBSP

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defendants.
Plaintiff has repeatedly failed to follow the court’s instructions and has instead filed

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a third amended complaint that is nearly identical to the second amended complaint. The

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United States District Court
Northern District of California

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RICO claims and claims against defendants in other districts have already been

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dismissed from this action as set forth in prior orders.

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Plaintiff was provided one final opportunity to present his claims against the PBSP

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defendants. He was instructed not to include defendants and claims from the other

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districts that have been dismissed without leave to amend. He was informed that if he

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did include lengthy allegations concerning these defendants and claims, then the entire

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action would be dismissed regardless if there were cognizable claims against the PBSP

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defendants. See McHenry at 1179. Plaintiff has failed to follow these instructions and

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has instead filed a complaint substantially similar to the prior complaints. This action is

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dismissed as frivolous and malicious and for failure to comply with Rule 8 and failure to

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follow the court’s instructions. Because plaintiff has already been provided multiple

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opportunities to amend, yet he has failed to follow court instructions, this action is

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dismissed with prejudice. See California Coal. for Families & Children v. San Diego Cty.

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Bar Ass’n, 657 Fed. Appx. 675, 678 (9th Cir. 2016).

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Plaintiff has also included allegations in the third amended complaint against the

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undersigned and court staff, and he seeks to recuse all federal judges in California. “The

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standard for recusal under 28 U.S.C. §§ 144, 455 is ‘whether a reasonable person with

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knowledge of all the facts would conclude that the judge's impartiality might reasonably
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be questioned.’” United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) (quoting

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Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984)) (internal citations omitted). “The

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alleged prejudice must result from an extrajudicial source; a judge's prior adverse ruling is

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not sufficient cause for recusal.” Id. Under Ninth Circuit authority, “the challenged judge

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[herself] should rule on the legal sufficiency of a recusal motion in the first instance.” Id.

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at 940 (citing United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978)).
Plaintiff has failed to demonstrate any reason for recusal. That plaintiff’s complaint

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has been dismissed with leave to amend on several occasions does not serve as a basis

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for recusal. See Mayes, 729 F.2d at 607 (“A judge's previous adverse ruling alone is not

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sufficient bias.”) (citation omitted). Plaintiff’s remaining contentions are meritless and the

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United States District Court
Northern District of California

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motion for recusal is denied. See Ronwin v. State Bar of Arizona, 686 F.2d 692, 701 (9th

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Cir. 1981), rev'd on other grounds sub nom. Hoover v. Ronwin, 466 U.S. 558 (1984) (“[A]

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judge is not disqualified merely because a litigant sues or threatens to sue him. . . . Such

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an easy method for obtaining disqualification should not be encouraged or allowed.”)

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(internal quotation marks and citations omitted); Gabor v. Seligmann, 222 Fed. Appx.

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577, 578 (9th Cir. 2007) (judge did not abuse his discretion by failing to recuse himself

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after the plaintiffs named him as a defendant in their amended complaint).

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CONCLUSION

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1. The motion for recusal of all federal judges in California (Docket No. 17) is

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DENIED.
2. The motion to amend (Docket No. 18) is GRANTED and the court has
reviewed the third amended complaint.
3. This action is DISMISSED with prejudice for the reasons set forth above. The
clerk shall close this case.
IT IS SO ORDERED.
Dated: July 24, 2017

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PHYLLIS J. HAMILTON
United States District Judge

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