Pina v. Lewis et al

Filing 40

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Motions terminated: 35 MOTION Requesting Hearing Via Telep hone and Ruling on the Motins filed on 4/18/52012 and 6/11/2012 filed by Pablo P. Pina, 34 MOTION Notice of Motion adn Motion the Court Rule on Motions Filed on 4/18/2012 and 6/11/2012 and that Plaintiff be given Telephone Access to Hearing filed by Pablo P. Pina. Amended Complaint due by 2/22/2013. Signed by Judge Ronald M. Whyte on 1/22/13. (jg, COURT STAFF) (Filed on 1/22/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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PABLO P. PINA,
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Plaintiff,
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v.
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WARDEN LEWIS, et al.,
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Defendants.
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No. C 10-3784 RMW (PR)
ORDER OF DISMISSAL
WITH LEAVE TO AMEND
(Docket Nos. 34, 35)

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Plaintiff, a state prisoner proceeding pro se, filed an amended civil rights complaint

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pursuant to 42 U.S.C. § 1983. The court dismissed with leave to amend plaintiff’s original

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complaint because it contained misjoined claims and defendants, it failed to provide a short and

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plain statement of his claims, and it did not link all of the defendants to each claim. For the

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reasons stated below, the court DISMISSES plaintiff’s amended complaint with leave to amend.1

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DISCUSSION

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In his amended complaint, plaintiff alleges that: (1) defendants Parker, Depew, Carrier,

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and Scavetta violated his First Amendment right to receiving mail; (2) defendants Barlow, Akin,

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Brandon, Wilber, Jacquez, and Lewis retaliated against him; (3) defendants Jacquez and Lewis

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implemented a policy depriving plaintiff of the adequate legal assistance and access to courts;

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and (4) defendant Boniti used excessive force against him. Plaintiff also raises state law claims.

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Because the court granted plaintiff’s motion to reconsider, and re-opened this action,
plaintiff’s motions requesting a ruling on his previous motions are DENIED as moot. (Dkt. Nos.
34, 35.)
Order of Dismissal with Leave to Amend
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A plaintiff may properly join as many claims as he has against an opposing party. Fed.

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R. Civ. P. 18(a). Nevertheless, while multiple claims against a single party may be alleged in a

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single complaint, unrelated claims against different defendants must be alleged in separate

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complaints. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (finding, under Rule 18(a),

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prisoner improperly brought complaint raising fifty distinct claims against twenty-four

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defendants). Further, parties may be joined as defendants only if “any right to relief is asserted

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against them jointly, severally, or in the alternative, with respect to or arising out of the same

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transaction, occurrence, or series of transactions and occurrences,” Fed. R. Civ. P. 20(a)(2)(A),

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and, “any question of law or fact common to all defendants will arise in the action,” Fed. R. Civ.

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P. 20(a)(2)(B). As a practical matter, this means that claims involving different parties cannot be

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joined together in one complaint if the facts giving rise to the claims are not factually related in

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some way – that is, if there is not “similarity in the factual background.” Coughlin v. Rogers,

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130 F.3d 1348, 1350 (9th Cir. 1997). General allegations are not sufficient to constitute

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similarity when the specifics are different. Id.

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In plaintiff’s amended complaint, there are potentially four different federal claims

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detailing separate incidents and distinct sets of defendants. Unrelated claims that involve

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different defendants must be brought in separate lawsuits. See George, 507 F.3d at 607. This

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rule is not only intended to avoid confusion that arises out of bloated lawsuits, but also to ensure

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that prisoners pay the required filing fees for their lawsuits and prevent prisoners from

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circumventing the three strikes rule under the Prison Litigation Reform Act.2 28 U.S.C.

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§ 1915(g).

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Plaintiff’s amended complaint does not meet the requirements of Rules 18(a) and 20(a).

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Plaintiff, however, is granted leave to file a second amended complaint that cures the noted

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pleading deficiencies. In particular, plaintiff may file either (1) a second amended complaint that

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brings one or more claims against one defendant, as set forth in Rule 18(a), or (2) a second

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The Prison Litigation Reform Act allows prisoners to file complaints without
prepayment of the filing fee unless they have previously filed three frivolous suits as a prisoner.
28 U.S.C. § 1915(a),(g).
Order of Dismissal with Leave to Amend
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amended complaint that brings one or more claims against multiple defendants, but only if those

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defendants can be properly joined under Rule 20(a)(2). In order to bring multiple claims in a

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single lawsuit, plaintiff must demonstrate that the Federal Rules of Civil Procedure permit the

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claims to be brought in a single lawsuit. Plaintiff must demonstrate how his right to relief arose

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out of the same “transaction, occurrence, or series of transactions.” Plaintiff may, if he so

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chooses, file a separate action or actions raising the claims that he does not include in any second

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amended complaint he files in the instant action.

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Any further attempt to raise unrelated claims against different defendants in a
single lawsuit may result in all claims being dismissed. Should plaintiff fail to comply with
this order, the action will be dismissed without prejudice.

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CONCLUSION
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Within thirty (30) days of the date this order is filed, plaintiff may file a

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SECOND AMENDED COMPLAINT in order to cure the deficiencies noted above. Plaintiff

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shall complete the form, and include in the caption both the case number of this action, No. C

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10-3784 RMW (PR), and the phrase “SECOND AMENDED COMPLAINT.” If plaintiff fails to

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timely file an amended complaint in conformity with this order, the action will be dismissed

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without prejudice. Because a second amended complaint will completely replace previous

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complaints, plaintiff must include in it all the claims he wishes to present. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

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2.

Plaintiff is advised that a second amended complaint supersedes the original

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complaint. “[A] plaintiff waives all causes of action alleged in the original complaint which are

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not alleged in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th

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Cir. 1981).

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3.

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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Failure to do so may result in the dismissal of this action, pursuant to Federal Rule of Civil

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Procedure 41(b), for failure to prosecute.

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Order of Dismissal with Leave to Amend
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IT IS SO ORDERED.
DATED: _________________
RONALD M. WHYTE
United States District Judge

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Order of Dismissal with Leave to Amend
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

PABLO PINA,

Case Number: CV10-03784 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
LEWIS et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on January 22, 2013, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

Pablo P. Pina D-28079
Pelican Bay State Prison
P. O. Box 7500
D-2; #122 SHU
Crescent City, CA 95531
Dated: January 22, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk