Rhodes v. Ohta et al

Filing 9

ORDER OF DISMISSAL WITH LEAVE TO AMEND by Judge Phyllis J. Hamilton granting 6 Motion for Extension of Time to Amend; granting 7 Motion to Amend/Correct. Second Amended Complaint due by 5/1/2017. (Certificate of Service Attached) (kcS, COURT STAFF) (Filed on 3/31/2017)

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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 WITH LEAVE
TO AMEND

v.
SAM OHTA, et al.,

Re: Dkt. Nos. 6, 7

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 original complaint was dismissed with leave to amend and plaintiff has filed an

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amended complaint.
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 and attorneys at two prisons over the course of

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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)).
The amended complaint is 60 hand written pages and names 58 defendants.

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Plaintiff presents allegations concerning events at two different prisons over the course of

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United States District Court
Northern District of California

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several years. He also names as defendants several attorneys, including two deputy

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attorney generals who litigated his previous cases and a superior court judge. Plaintiff

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

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

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claims of excessive force, confiscation of mail, confiscation of personal and legal

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property, denial of access to the courts and violations of the Racketeer Influenced and

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Corrupt 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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approximately 14 defendants who were employed at Pelican Bay State Prison (“PBSP”),

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which is in this district. Plaintiff alleges that the PBSP defendants violated his rights after

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he was 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 1179-

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80. Plaintiff has also presented many unrelated claims. The original complaint was

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dismissed with leave to amend to focus on the events that occurred at PBSP. Plaintiff

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was informed that the allegations that occurred during plaintiff’s incarceration at Kern

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Valley State Prison and elsewhere were dismissed from this action without prejudice.

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Plaintiff could file a case or cases concerning these events in the district or districts

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where they occurred.

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Plaintiff has not followed the court’s instructions and has instead filed an amended

United States District Court
Northern District of California

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complaint that is nearly identical to the original complaint. Plaintiff argues he can

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proceed with this action because he has raised a RICO claim against all 58 defendants.

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To state a civil RICO claim, plaintiffs must allege (1) conduct (2) of an enterprise (3)

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through a pattern (4) of racketeering activity (5) causing injury to plaintiff's business or

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property. Ove v. Gwinn, 264 F.3d 817, 825 (9th Cir. 2001) (citing 18 U.S.C. § 1964(c)).

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To demonstrate injury for RICO purposes, plaintiff must show proof of concrete

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financial loss, and not mere injury to a valuable intangible property interest. Personal

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injuries are not compensable under RICO. Id. Plaintiff also must satisfy the RICO

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causation element by demonstrating that the defendants' conduct directly and

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proximately caused the alleged injury. Id. at 825. Civil rights violations and injury to

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reputation do not fall within the statutory definition of "racketeering activity" and fail to

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state a RICO claim. See Bowen v. Oistead, 125 F.3d 800, 806 (9th Cir. 1997).

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In pleading a RICO violation, plaintiff must plead “enough facts to state a claim to

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relief that is plausible on its face . . . and [the facts] must be enough to raise a right to

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relief above the speculative level.” Twombly, 550 U.S. at 556. Plaintiff’s vague and

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conclusory allegations are insufficient to meet all elements of a RICO claim.

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The amended complaint is dismissed with leave to amend. The claims and

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defendants regarding Kern Valley State Prison and conduct that occurred in other

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districts are dismissed from this action. Plaintiff may file cases related to those events in

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the districts where they occurred. If plaintiff files a second amended complaint in this

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court he must focus on events that occurred in this district at PBSP.

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Plaintiff also states that he did not exhaust his inmate appeals because no remedy

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was available for a multi-district racketeering claim. However, the Prison Litigation

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Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (“PLRA”), amended 42

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U.S.C. § 1997e provides that “[n]o action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in

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United States District Court
Northern District of California

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

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available are exhausted.” 42 U.S.C. § 1997e(a). Plaintiff must address his failure to

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exhaust in a second amended complaint and specifically allege whether he exhausted

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any of the claims that arose from PBSP.
CONCLUSION

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1. The motion for an extension (Docket No. 6) and the motion to amend (Docket

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No. 7) are GRANTED and the court has reviewed the amended complaint which is

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deemed timely filed.

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2. The amended complaint is DISMISSED with leave to amend in accordance

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with the standards set forth above. The second amended complaint must be filed no

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later than May 1, 2017, and must include the caption and civil case number used in this
order and the words AMENDED COMPLAINT on the first page. Because an amended
complaint completely replaces the original complaint, plaintiff must include in it all the
claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.
1992). He may not incorporate material from the original complaint by reference. Failure
to file an amended complaint may result in dismissal of this case.

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3. It is the plaintiff's responsibility to prosecute this case. Plaintiff must keep the
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court informed of any change of address by filing a separate paper with the clerk headed
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5

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“No
otice of Cha
ange of Address,” and must com
d
mply with the court's ord
e
ders in a tim
mely

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fas
shion. Failu to do so may resul in the dism
ure
o
lt
missal of th action fo failure to prosecute
his
or

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pursuant to Federal Rule of Civil Pr
e
rocedure 41
1(b).

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IT IS SO ORDER
S
RED.
Da
ated: March 31, 2017
h

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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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2016\2016_06805
5_Rhodes_v_Oh
hta_(PSP)\16-cv-06805-PJH-dwlt
ta2.docx

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United States District Court
Northern District of California

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6

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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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KAVIN MAU
K
URICE RHO
ODES,

Case No. 1
16-cv-06805
5-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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SA OHTA, et al.,
AM
s.
Defendants

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I, the un
ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S.
ee
ice
strict Court, Northern Di
istrict of Cal
lifornia.
Dis

United States District Court
Northern District of California

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That on March 31, 2017, I SER
n
RVED a true and correct copy(ies) of the attache by
f
ed,
pla
acing said co
opy(ies) in a postage paid envelope a
d
addressed to the person(s hereinafte listed, by
s)
er
dep
positing said envelope in the U.S. Mail, or by pla
d
n
M
acing said co
opy(ies) into an inter-off delivery
o
ffice
y
rec
ceptacle loca in the Cl
ated
lerk's office.
.

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Ka
avin Maurice Rhodes ID: D-20245
e
:
Pel
lican Bay State Prison
P.O Box 7500
O.
0
Cre
escent City, CA 95532-7
7000

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Da
ated: March 31, 2017
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usan Y. Soon
ng
Su
Cl
lerk, United States Distr Court
d
rict

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By
y:_________
___________
_______
K
Kelly Collins, Deputy Cle to the
,
erk
H
Honorable PH
HYLLIS J. H
HAMILTON
N

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