Solomon v. Meyer et al

Filing 8

ORDER OF DISMISSAL WITH LEAVE TO AMEND. Signed by Judge Lucy H. Koh on 7/29/1. (Attachments: # 1 certificate of mailing)(mpb, COURT STAFF) (Filed on 7/29/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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VINCENTE URAIN SOLOMON,

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Plaintiff,

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v.
CDW G. LEWIS, et al.,

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Defendants.

No. C 11-2827 LHK (PR)
ORDER OF DISMISSAL
WITH LEAVE TO AMEND

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Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint against prison
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officials at Salinas Valley State Prison (“SVSP”), pursuant to 42 U.S.C. § 1983. Plaintiff’s
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motions for leave to proceed in forma pauperis are GRANTED in a separate order. For the
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reasons stated below, the Court dismisses the complaint with leave to amend.
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DISCUSSION
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A.

Standard of Review

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A federal court must conduct a preliminary screening in 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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any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or
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seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C.
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§ 1915A(b)(1), (2). Pro se pleadings must, however, be liberally construed. See Balistreri v.
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Order of Dismissal with Leave to Amend
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Pacifica Police Dep’t., 901 F.2d 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.” “Specific facts are not necessary; the

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statement need only “‘give the defendant fair notice of what the . . . claim is and the grounds

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upon which it rests.”’” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (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

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

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do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.”

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Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A

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complaint must proffer “enough facts to state a claim for relief that is plausible on its face.” Id.

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at 1974.

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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

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

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Atkins, 487 U.S. 42, 48 (1988).

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B.

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Legal Claims
The complaint contains a number of improperly joined claims. “A party asserting a

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claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative

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claims, as many claims as it has against an opposing party.” Fed. R. Civ. P. 18(a). The rules are

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somewhat different when, as here, there are multiple parties. Multiple parties may be joined as

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defendants in one action only “if any right to relief is asserted against them jointly, severally, or

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in the alternative with respect to or arising out of the same transaction, occurrence, or series of

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transactions or occurrences; and any question of law or fact common to all defendants will arise

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in the action.” Fed. R. Civ. P. 20(a)(2).

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The upshot of these rules is that “multiple claims against a single party are fine, but

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

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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). “Unrelated claims against different
Order of Dismissal with Leave to Amend
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defendants belong in different suits.” Id.
The complaint appears to raise six claims. The following demonstrates the range of

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claims plaintiff asserts against at least seven different prison officials: that prison officials failed

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to protect him by purposefully placing him with a documented enemy; that prison officials

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created a false Rules Violation Report against him; that prison officials retaliated against him by

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placing him in administrative segregation and secured housing; that prison officials were

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deliberately indifferent to his medical needs by prohibiting him from receiving physical therapy;

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that prison officials deprived him of property; and that prison officials were deliberately

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indifferent to his medical needs by refusing to fix his teeth.

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As alleged, these claims against multiple parties do not arise out of the same transaction,

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occurrence or series of occurrences, and do not involve a common question of law or fact. The

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complaint is simply a recitation of several things that Plaintiff has found objectionable at SVSP.

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“A buckshot complaint that would be rejected if filed by a free person – say, a suit complaining

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that A defrauded plaintiff, B defamed him, C punched him, D failed to pay a debt, and E

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infringed his copyright, all in different transactions – should be rejected if filed by a prisoner.”

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Id. Accordingly, the Court finds the claims and Defendants improperly joined.

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Although a Court may strike individual claims that are not properly joined, the Court

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cannot here determine which of the claims Plaintiff may wish to keep and which he wants to

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omit. See Fed. R. Civ. P. 21. Thus, instead of dismissing certain claims and Defendants, the

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Court now dismisses the complaint with leave to file an amended complaint. The amended

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complaint must comply with Federal Rules of Civil Procedure 18 and 20 concerning joinder of

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claims and Defendants, and if it does not then this entire action will be dismissed without

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prejudice.

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CONCLUSION

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1.

The complaint is DISMISSED with leave to amend.

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2.

Plaintiff shall file an AMENDED COMPLAINT within thirty days from the date

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this order is filed to cure the deficiencies described above. The amended complaint must include

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the caption and civil case number used in this order (C 11-2827 LHK (PR)) and the words
Order of Dismissal with Leave to Amend
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AMENDED COMPLAINT on the first page. Plaintiff may not incorporate material from the

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prior complaint by reference. Failure to file an amended complaint within thirty days and in

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accordance with this order will result in dismissal of this action. The Clerk of the Court shall

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send Petitioner a blank civil rights form along with his copy of this order.

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Plaintiff is advised that an amended complaint supersedes the original complaint.

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“[A] plaintiff waives all causes of action alleged in the original complaint which are not alleged

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in the amended complaint.” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).

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Defendants not named in an amended complaint are no longer defendants. See Ferdik v.

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

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4.

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 “Notice

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of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to

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do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule

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of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:

7/29/11
LUCY H. KOH
United States District Judge

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Order of Dismissal with Leave to Amend
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