(PC) Carroll v. Covello

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 TREMAYNE CARROLL, No. 2:20-cv-1707 KJN P 12 Plaintiff, 13 v. ORDER 14 WARDEN COVELLO, et al., 15 Defendants. [16] 17 Plaintiff is a state prisoner, proceeding pro se, and initially filed a petition for, inter alia, 18 writ of habeas corpus. On September 8, 2020, the undersigned screening plaintiff’s filing and 19 granted plaintiff leave to file either a petition for writ of habeas corpus, or a civil rights complaint. 20 In response, plaintiff filed an unsigned civil rights complaint. (ECF No. 8.) Plaintiff was granted 21 leave to correct such omission, and on September 28, 2020, filed a signed civil rights complaint 22 under 42 U.S.C. § 1983.1 Plaintiff also requested leave to proceed in forma pauperis pursuant to [23] 28 U.S.C. § 1915 . This proceeding was referred to this court by Local Rule 302 pursuant to 28 24 U.S.C. § 636 (b)(1). 25 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915 (a). 26 Accordingly, the request to proceed in forma pauperis is granted. [27] 1 The Clerk of the Court is directed to change the nature of suit code to 550, and strike plaintiff’s 28 unsigned civil rights complaint (ECF No. 8). 1 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. 2 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in 3 accordance with the provisions of 28 U.S.C. § 1915 (b)(1). By separate order, the court will direct 4 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 5 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments 6 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These 7 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the 8 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 9 § 1915(b)(2). 10 Screening Standards 11 The court is required to screen complaints brought by prisoners seeking relief against a 12 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 13 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 14 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 15 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 16 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 17 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 18 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 19 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, [20] 490 U.S. at 327 . The critical inquiry is whether a constitutional claim, however inartfully 21 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 22 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 23 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 24 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 25 1227. 26 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 27 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 28 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 1 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 2 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 3 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 4 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555 . 5 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 6 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 7 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555 , citations and internal 8 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 9 true the allegations of the complaint in question, Erickson, 551 U.S. at 93 , and construe the 10 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232 , 236 11 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). 12 The Civil Rights Act 13 The Civil Rights Act under which this action was filed provides as follows: 14 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the 15 deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at 16 law, suit in equity, or other proper proceeding for redress. [17] 42 U.S.C. § 1983 . To state a civil rights claim under § 1983, a plaintiff must allege: (1) the 18 violation of a federal constitutional or statutory right; and (2) that the violation was committed by 19 a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. 20 Williams, 297 F.3d 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil 21 rights claim unless the facts establish the defendant’s personal involvement in the constitutional 22 deprivation or a causal connection between the defendant’s wrongful conduct and the alleged 23 constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. 24 Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). That is, plaintiff may not sue any official on the 25 theory that the official is liable for the unconstitutional conduct of his or her subordinates. 26 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 27 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 28 their employees under a theory of respondeat superior and, therefore, when a named defendant 1 holds a supervisorial position, the causal link between him and the claimed constitutional 2 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) 3 (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 4 438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert. 5 denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of 6 official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 7 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal 8 participation is insufficient). 9 Discussion 10 Initially, the undersigned notes that plaintiff’s complaint fails to clearly identify the 11 individuals he seeks to name as defendants. In the caption of his complaint, he names 12 Warden Covello, Cpt. Hientschel, Ralph Diaz, Secretary of CDCR, State of California, CDCR, 13 Correctional Officer Arrellanos, and Lt. Alvis. (ECF No. 14 at 1.) However, in the defendants’ 14 section of his pleading, plaintiff names Warden Covello, Ralph Diaz, CDCR John Doe 1-20, and 15 State of California John Doe. (ECF No. 14 at 2.) 16 In his three causes of action, plaintiff fails to clearly set forth charging allegations as to 17 each named defendant, but rather recites a laundry list of historical events, including his 18 allegation that he is a federal witness represented by counsel in Armstrong v. Newsom, for which 19 he has suffered retaliation. (ECF No. 14 at 3-5.) For example, he claims he has been 20 continuously put in jeopardy by CDCR staff by falsely providing inmates doctored documents 21 labeling him as a predator and snitch in retaliation for plaintiff reporting he was the victim of 22 employee sexual misconduct. (ECF No. 14 at 14.) In his third claim, he alleges staff members at 23 MCSP, RJD, KVSP, HDSP, SVSP, CHCF, CMF, CIM, and CDCR are all spreading false 24 documents about plaintiff making it unsafe for plaintiff to be housed anywhere in CDCR, and 25 CDCR is discriminating against petitioner for ADA disabilities and manipulating his medical and 26 mental health central files to deny plaintiff parole and treatment. 27 The court finds such wide-ranging allegations in plaintiff’s complaint so vague and 28 conclusory that it is unable to determine whether the current action is frivolous or fails to state a 1 claim for relief. The court has determined that the complaint does not contain a short and plain 2 statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible 3 pleading policy, a complaint must give fair notice and state the elements of the claim plainly and 4 succinctly. Jones v. Cmty. Redev. Agency, 733 F.2d 646 , 649 (9th Cir. 1984). Plaintiff must 5 allege with at least some degree of particularity overt acts which each defendant engaged in that 6 support plaintiff’s claim. Id. Because plaintiff has failed to comply with the requirements of Fed. 7 R. Civ. P. 8(a)(2), the complaint must be dismissed. The court will, however, grant leave to file 8 an amended complaint. 9 Leave to Amend 10 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 11 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See, e.g., 12 West v. Atkins, 487 U.S. 42, 48 (1988). Also, the complaint must allege in specific terms how 13 each named defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no 14 liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a 15 defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. at 371 ; May v. Enomoto, 633 16 F.2d 164, 167 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official 17 participation in civil rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266 , 18 268 (9th Cir. 1982). 19 A plaintiff may properly assert multiple claims against a single defendant. Fed. Rule Civ. 20 P. 18 . In addition, a plaintiff may join multiple defendants in one action where “any right to relief 21 is asserted against them jointly, severally, or in the alternative with respect to or arising out of the 22 same transaction, occurrence, or series of transactions and occurrences” and “any question of law 23 or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). Unrelated 24 claims against different defendants must be pursued in separate lawsuits. See George v. Smith, [25] 507 F.3d 605, 607 (7th Cir. 2007). This rule is intended “not only to prevent the sort of morass [a 26 multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the 27 required filing fees -- for the Prison Litigation Reform Act limits to 3 the number of frivolous 28 //// 1 suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. 2 § 1915(g).” George, 507 F.3d at 607 . 3 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 4 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 5 heightened pleading standard in cases other than those governed by Rule 9(b).”); Fed. R. Civ. P. 6 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 7 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema 8 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 9 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. Plaintiff must 10 eliminate from plaintiff’s pleading all preambles, introductions, argument, speeches, 11 explanations, stories, griping, vouching, evidence, attempts to negate possible defenses, 12 summaries, and the like. McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996) (affirming 13 dismissal of § 1983 complaint for violation of Rule 8 after warning); see Crawford-El v. Britton, [14] 523 U.S. 574, 597 (1998) (reiterating that “firm application of the Federal Rules of Civil 15 Procedure is fully warranted” in prisoner cases). The court (and defendant) should be able to read 16 and understand plaintiff’s pleading within minutes. McHenry, 84 F.3d at 1177 . A rambling 17 pleading, including many defendants with unexplained, tenuous or implausible connection to the 18 alleged constitutional injury or joining a series of unrelated claims against many defendants very 19 likely will result in delaying the review required by 28 U.S.C. § 1915 and an order dismissing 20 plaintiff’s action pursuant to Fed. R. Civ. P. 41 for violation of these instructions. 21 Also, plaintiff is informed that the court cannot refer to a prior pleading in order to make 22 plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be 23 complete in itself without reference to any prior pleading. This requirement exists because, as a 24 general rule, an amended complaint supersedes the original complaint. See Ramirez v. County of 25 San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint supersedes the 26 original, the latter being treated thereafter as non-existent.’” (internal citation omitted)). Once 27 plaintiff files an amended complaint, the original pleading no longer serves any function in the 28 //// 1 case. Therefore, in an amended complaint, as in an original complaint, each claim and the 2 involvement of each defendant must be sufficiently alleged. 3 Plaintiff’s September 23, 2020 Filing 4 Finally, on September 23, 2020, plaintiff filed an objection to the court’s order denying 5 appointment of counsel and asked the court to reconsider. (ECF No. 13.) Plaintiff complains that 6 he has been placed on multiple quarantines due to the Covid-19 pandemic, and raises different 7 allegations from those set forth in his civil rights complaint against individuals not named as 8 defendants in such pleading. 9 District courts lack authority to require counsel to represent indigent prisoners in section 10 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 11 circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 12 U.S.C. § 1915 (e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 13 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 14 circumstances” exist, the court must consider plaintiff’s likelihood of success on the merits as 15 well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the 16 legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not 17 abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional 18 circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of 19 legal education and limited law library access, do not establish exceptional circumstances that 20 warrant a request for voluntary assistance of counsel. 21 In light of this screening order, there is no operative civil rights complaint on file. The 22 court is therefore unable to evaluate whether plaintiff is likely to succeed on the merits. Having 23 considered the factors under Palmer at this stage of the proceedings, the court finds that plaintiff 24 has failed to meet his burden of demonstrating exceptional circumstances warranting the 25 appointment of counsel at this time. 26 Although plaintiff also styled such filing as a petition for preliminary injunctive relief, 27 temporary restraining order, and motion to compel (ECF No. 13 at 1), plaintiff makes no effort to 28 //// 1 allege facts meeting the standards required in this Circuit,2 but rather complains about various 2 unrelated incidents and again fails to connect a specific violation to an individual named as a 3 defendant. Plaintiff’s allegations are insufficient to support a claim for injunctive relief. 4 In accordance with the above, IT IS HEREBY ORDERED that: 5 1. Plaintiff’s request for leave to proceed in forma pauperis is granted. 6 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 7 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 8 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 9 Director of the California Department of Corrections and Rehabilitation filed concurrently 10 herewith. 11 3. Plaintiff’s complaint (ECF No. 14) is dismissed. 12 4. Within thirty days from the date of this order, plaintiff shall complete the attached 13 Notice of Amendment and submit the following documents to the court: 14 a. The completed Notice of Amendment; and 15 b. An original and one copy of the Amended Complaint. 16 Plaintiff’s amended complaint shall comply with the requirements of the Civil Rights Act, the 17 Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must 18 also bear the docket number assigned to this case and must be labeled “Amended Complaint.” [19] 20 2 In order to prevail on a motion for injunctive relief, the moving party must demonstrate that (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of 21 preliminary relief; (3) the balance of equities tips in its favor; and (4) that the relief sought is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Ninth [22] Circuit has held that injunctive relief may issue, even if the moving party cannot show a 23 likelihood of success on the merits, if “‘serious questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, 24 so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 , [25] 1135 (9th Cir. 2011). Under either formulation of the principles, preliminary injunctive relief should be denied if the probability of success on the merits is low. Johnson v. California State [26] Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995) (“‘[E]ven if the balance of hardships tips 27 decidedly in favor of the moving party, it must be shown as an irreducible minimum that there is a fair chance of success on the merits.’” (quoting Martin v. Int’l Olympic Comm., 740 F.2d 670 , 28 675 (9th Cir. 1984))). 1 Failure to file an amended complaint in accordance with this order may result in the 2 | dismissal of this action. 3 6. Plaintiff's September 23, 2020 motion (ECF No 13) is denied without prejudice. 4 7. The Clerk of the Court is directed to change the nature of suit code to 550, and to strike 5 | plaintiff's unsigned pleading (ECF No. 8). 6 | Dated: December 11, 2020 Frese Arn g KENDALL J. NE UNITED STATES MAGISTRATE JUDGE varr707.14n [7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] T. CARROLL, No. 2:20-cv-1707 KJN P [11] Plaintiff, [12] v. NOTICE OF AMENDMENT [13] WARDEN COVELLO, et al., [14] Defendant. [16] Plaintiff hereby submits the following document in compliance with the court’s order [17] filed______________. [18] _____________ Amended Complaint 19 DATED: [20] ________________________________ 21 Plaintiff