(PC) Marti v. Manning

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 ALEX LAMOTA MARTI, No. 2:21-cv-01829 DB P 12 Plaintiff, 13 v. ORDER 14 TODD MANNING, et al., 15 Defendants. [16] 17 Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action pursuant to 42 18 U.S.C. § 1983 . Plaintiff claims defendants retaliated against him in violation of his First 19 Amendment rights and also violated his Eighth Amendment rights. Plaintiff has paid the filing 20 fee for this action. Presently before the court is plaintiff’s complaint for screening. (ECF No. 1.) 21 For the reasons set forth below, plaintiff will be given the option to proceed on his 22 cognizable claims or to be given leave to amend his complaint. 23 SCREENING 24 I. Legal Standards 25 The court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 27 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 28 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 1 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 2 U.S.C. § 1915A(b)(1) & (2). 3 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 4 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 5 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 6 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, [7] 490 U.S. at 327 . The critical inquiry is whether a constitutional claim, however inartfully 8 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227 . Rule 8(a)(2) of 9 the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim 10 showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what 11 the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 12 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 13 However, in order to survive dismissal for failure to state a claim a complaint must 14 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 15 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, [16] 550 U.S. at 555 . In reviewing a complaint under this standard, the court must accept as true the 17 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 18 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 19 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 20 The Civil Rights Act under which this action was filed provides as follows: 21 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 22 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 23 or other proper proceeding for redress. [24] 42 U.S.C. § 1983 . The statute requires that there be an actual connection or link between the [25] actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See [26] Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A [27] person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § [28] 1 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform 2 an act which he is legally required to do that causes the deprivation of which complaint is made.” 3 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 4 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 5 their employees under a theory of respondeat superior and, therefore, when a named defendant 6 holds a supervisorial position, the causal link between him and the claimed constitutional 7 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 8 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 9 concerning the involvement of official personnel in civil rights violations are not sufficient. See 10 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 11 II. Linkage Requirement 12 Under Section 1983, a plaintiff bringing an individual capacity claim must demonstrate 13 that each defendant personally participated in the deprivation of his rights. See Jones v. 14 Williams, 297 F.3d 930, 934 (9th Cir. 2002). There must be an actual connection or link between 15 the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 16 Ortez v. Washington County, State of Oregon, 88 F.3d 804, 809 (9th Cir. 1996); see also Taylor 17 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 18 Government officials may not be held liable for the actions of their subordinates under a 19 theory of respondeat superior. Iqbal, 556 U.S. at 676 (stating vicarious liability is inapplicable in 20 Section 1983 suits). Since a government official cannot be held liable under a theory of vicarious 21 liability in Section 1983 actions, plaintiff must plead sufficient facts showing that the official has 22 violated the Constitution through his own individual actions by linking each named defendant 23 with some affirmative act or omission that demonstrates a violation of plaintiff's federal rights. 24 Id. at 676. 25 III. Allegations in the Complaint 26 At all relevant times, plaintiff was an inmate at Mule Creek State Prison (“MCSP”). (ECF 27 No. 1 at 1.) The complaint names as defendants employed by the California Department of 28 Corrections and Rehabilitation (“CDCR”): (1) Correctional Sergeant Todd Manning; (2) 1 Correctional Lieutenant D. Pasioles; (3) Correctional Sergeant J. Canela; (4) Correctional 2 Lieutenant T. Cooper; (5) Correctional Captain A. Avalos; (6) Associate Warden R. Roy; (7) 3 Chief Deputy Warden B. Holmes; and (8) Correctional Officer S. La Rosa. (Id. at 2.) 4 In his complaint, plaintiff alleges the following: Plaintiff filed three grievances against 5 defendant La Rosa on November 7, 2020, November 14, 2020, and December 5, 2020. (ECF No. 6 19-20.) Each of these grievances concerned defendant La Rosa failing to wear a mask over his 7 nose and mouth. (Id.) The grievances were approved on review. (Id.) In response, defendant La 8 Rose retaliated against plaintiff by waking plaintiff up “every night that [defendant La Rosa] 9 worked during the 21:30 count.” (Id. at 20.) Defendant La Rosa also conducted a “retaliatory 10 cell search” on January 31, 2021. (Id. at 21.) Plaintiff filed a grievance but it was denied and 11 defendant Manning “threatened plaintiff with disciplinary action” for falsifying documents. (Id.) 12 This grievance denial was approved by defendant Holmes. (Id.) 13 At 9:30 p.m. on April 27, 2021, plaintiff was awakened by banging loud noises. (Id. at 14 10.) Plaintiff was later told by other inmates that defendant La Rosa had entered “the shower 15 used by plaintiff” and removed plastic hooks from the walls using his baton. (Id.) Inmates also 16 told plaintiff that defendant La Rosa was not wearing a mask at this time. (Id.) On April 29, 17 2021, plaintiff submitted an inmate grievance against defendant La Rosa complaining that 18 defendant had damaged plastic hooks purchased by plaintiff and that defendant had violated 19 COVID-19 protocol by not wearing a mask. (Id. at 12.) Plaintiff was served a Rules Violation 20 Report (“RVR”) issued by defendant Manning on May 14, 2021. (Id. at 13.) In the RVR, 21 defendant Manning stated he reviewed plaintiff’s inmate grievance but determined that plaintiff 22 had falsified the document. (Id.) Specifically, defendant Manning claimed that he had reviewed 23 a portion of surveillance video and determined that plaintiff’s allegations were “dishonest and/or 24 false.” (Id. at 14.) 25 Defendants Canela and Cooper “read, reviewed, and approved” the May 14, 2021 RVR. 26 (Id. at 14-15.) On May 17, 2021, plaintiff sent a “Form GA-22” to defendant Roy requesting that 27 defendant review the RVR but did not receive a response. (Id. at 15.) Defendant Pasioles 28 conducted the disciplinary hearing on the RVR. (Id. at 16.) During the hearing, defendant 1 Pasioles denied plaintiff’s request for dismissal on First Amendment grounds and found plaintiff 2 guilty. (Id. at 16-17.) As a penalty, defendant Pasioles “imposed a complete denial of all access 3 to outdoor exercise (yard) for 60 days, a credit loss of 60 days, and 30 days loss of package 4 privileges. (Id. at 17.) Defendant Avalos reviewed the hearing results and, after revisions, 5 approved the findings. (Id.) Defendant Roy also reviewed the hearing results and approved 6 them. (Id. at 18.) 7 Plaintiff claims that defendants Manning, Pasioles, Canela, Cooper, Avalos, and Roy 8 violated plaintiff’s First Amendment rights by the issuance of the May 14, 2021 RVR. (Id. at 9.) 9 Plaintiff also alleges that defendant La Rosa retaliated against him by searching his cell in 10 violation of his First Amendment rights and violated his Eighth Amendment rights by denying 11 plaintiff sleep and disregarding COVID-19 protocols. (Id.) Plaintiff further alleges that 12 defendants Manning and Holmes violated First Amendment rights by threatening disciplinary 13 action in response to plaintiff’s grievances. (Id.) Finally, plaintiff claims that defendants 14 Manning, Pasioles, Canela, Cooper, Avalos, and Roy violated the Eighth Amendment by denying 15 plaintiff access to outdoor exercise for sixty days. (Id.) 16 IV. Does Plaintiff State a Claim under § 1983? 17 A. Retaliation 18 1. Legal Standard 19 “Of fundamental import to prisoners are their First Amendment rights to file prison 20 grievances, and to pursue civil rights litigation in the courts. Without those bedrock constitutional 21 guarantees, inmates would be left with no viable mechanism to remedy prison injustices. And 22 because purely retaliatory actions taken against a prisoner for having exercised those rights 23 necessarily undermine those protections, such actions violate the Constitution quite apart from 24 any underlying misconduct they are designed to shield.” Rhodes v. Robinson, 408 F.3d 559 , 567 25 (citations, internal quotations, and footnote omitted) (9th Cir. 2005). 26 “Within the prison context, a viable claim of First Amendment retaliation entails five 27 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 28 because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's 1 exercise of his first amendment rights, and (5) the action did not reasonably advance a legitimate 2 correctional goal.” Id. at 567-68 . A plaintiff who fails to allege a chilling effect may still state a 3 claim if he alleges that he suffered some other harm. Id. at 568, n.11 ; see also Brodheim v. Cry, [4] 584 F.3d 1262, 1269-71 (9th Cir. 2009). The plaintiff must also plead facts that suggest an 5 absence of legitimate correctional goals for the conduct he contends was retaliatory. Pratt v. 6 Rowland, 65 F.3d 802, 806 (9th Cir. 1995). 7 2. Defendant Manning 8 Plaintiff claims that defendant Manning violated his First Amendment rights by 9 submitting an RVR against plaintiff in retaliation for plaintiff filing an inmate grievance. (ECF 10 No. 1 at 13-14.) Plaintiff also alleges that in response to other grievances plaintiff had filed 11 defendant Manning had previously threatened plaintiff with an RVR. (Id. at 21.) 12 Plaintiff has alleged sufficient facts to state a First Amendment retaliation claim against 13 defendant Manning. Under the facts in the complaint, the threat of rules violations and eventual 14 RVR in response to plaintiff’s grievances satisfy the first three elements for a retaliation claim. 15 Rhodes, 408 F.3d at 567-68 . Plaintiff claims that these actions had a chilling effect on the 16 exercise of his First Amendment rights and there does not appear to be a correctional goal in 17 threatening plaintiff with a rules violation and issuing an RVR in response to plaintiff’s 18 grievance. Id. 19 Given the above, plaintiff has stated sufficient facts to state a First Amendment retaliation 20 claim against defendant Manning. 21 3. Defendants Pasioles, Canela, Cooper, Avalos, and Roy 22 Defendants Pasioles, Canela, Cooper, Avalos, and Roy were involved at different stages 23 of the review and that followed from the RVR submitted by defendant Manning. Per the 24 complaint, defendants Canela and Cooper reviewed and approved the RVR (ECF No. 1 at 1425 15), defendant Pasioles conducted the disciplinary hearing on the RVR (id. at 16), and defendants 26 Avalos and Roy reviewed and approved the results of the hearing (id. at 17-18). 27 Plaintiff has alleged at least minimally sufficient facts to state First Amendment retaliation 28 claims against these defendants. The defendants review and approval of the May 14, 2021 RVR 1 and subsequent disciplinary hearing could be an adverse act in response to plaintiff’s protected 2 conduct of filing a grievance. Rhodes, 408 F.3d at 567-68 . As stated earlier, such an RVR along 3 with its subsequent penalties could certainly chill an inmate’s speech and does not appear to serve 4 a legitimate correctional goal. Id. 5 Given the above, plaintiff has stated sufficient facts to state a First Amendment retaliation 6 claim against defendants Pasioles, Canela, Cooper, Avalos, and Roy. 7 4. Defendant Holmes 8 Plaintiff claims that defendant Holmes retaliated against him for threatening disciplinary 9 action in response to plaintiff’s grievances. (ECF No. 1 at 9.) Plaintiff has not alleged sufficient 10 facts to allege a retaliation claim against defendant Holmes. Based on the allegations in 11 plaintiff’s complaint, defendant Holmes’ involvement is limited to approving defendant 12 Manning’s denial of plaintiff’s grievance. (Id. at 22.) Plaintiff claims that defendant Manning 13 threatened plaintiff with disciplinary action for filing grievances and that defendant Holmes had 14 somehow made the same threat by approving the denial. (Id.) 15 As stated, these facts are not sufficient to show that defendant Holmes took adverse action 16 against the plaintiff. Rhodes, 408 F.3d at 567-68 . Under the facts plaintiff alleged, defendant 17 Holmes’s only involvement was in approving that plaintiff’s grievance should be denied. It is not 18 apparent why defendant Holmes has performed an adverse act as a result of defendant Manning 19 purportedly threatening the plaintiff. Defendant Holmes also cannot be held responsible for the 20 actions of their subordinates under a theory of respondeat superior. Iqbal, 556 U.S. at 676. 21 Given the above, plaintiff has failed to allege sufficient facts to state a claim against 22 defendant Holmes. As plaintiff’s complaint also states cognizable claims, plaintiff will be given 23 the option to proceed only on those claims or to be given leave to amend his complaint. 24 5. Defendant La Rosa 25 Plaintiff’s final First Amendment claim is against defendant La Rosa. Plaintiff claims 26 defendant La Rosa retaliated against him for filing grievances by conducting a retaliatory cell 27 search and interrupting plaintiff’s sleep. (ECF No. 1 at 9.) 28 //// 1 Plaintiff has alleged sufficient facts to state a retaliation claim against defendant La Rosa. 2 Plaintiff has alleged defendant took an adverse action against plaintiff in response to plaintiff 3 filing grievances. Rhodes, 408 F.3d at 567-68 . As discussed above, this can also have a chilling 4 effect on plaintiff’s protected activities. Id. Cell searches can be used to further legitimate 5 correctional goals. See, e.g., Lewis v. Wagner, 14-cv-2264-WQH, 2016 WL 11281165 , at *7 6 (S.D. Cal. June 7, 2016); Reed v. Tracy, 3:11–cv–00066–HDM–WGC, 2013 WL 6076460 , at *4 7 (D. Nev. Nov. 18, 2013) (“appropriately performed inmate cell searches undeniably serve a 8 legitimate correctional goal”). However, plaintiff has alleged that defendant La Rosa solely 9 searched the cells of inmates who had filed grievances against him. (ECF No. 1 at 21.) If true, 10 this is sufficient to show that defendant La Rosa’s search of plaintiff’s cell did not serve to 11 advance a legitimate correctional goal. Rhodes, 408 F.3d at 567-68 . 12 Given the above, plaintiff has alleged sufficient facts in the complaint to state a First 13 Amendment retaliation claim against defendant La Rosa. 14 B. Eighth Amendment 15 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. 16 Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual 17 punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); 18 Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). 19 Neither accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy 20 and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited 21 by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319 . 22 1. Inmate Safety 23 Under the Eighth Amendment, prison officials have a duty “to take reasonable measures 24 to guarantee the safety of inmates, which has been interpreted to include a duty to protect 25 prisoners.” Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing 26 Farmer, 511 U.S. at 832-33 and Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)). To 27 establish a violation of this duty, a prisoner must “show that the officials acted with deliberate 28 //// 1 indifference to threat of serious harm or injury to an inmate.” Labatad, 714 F.3d at 1160 (citing 2 Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)). 3 A failure to protect claim under the Eighth Amendment requires a showing that “the 4 official [knew] of and disregard[ed] an excessive risk to inmate... safety.” Farmer, 511 U.S. at 5 837. “Whether a prison official had the requisite knowledge of a substantial risk is a question of 6 fact subject to demonstration in the usual ways, including inference from circumstantial evidence, 7 . . . and a factfinder may conclude that a prison official knew of a substantial risk from the very 8 fact that the risk was obvious.” Id. at 842 (citations omitted). The duty to protect a prisoner from 9 serious harm requires that prison officials take reasonable measures to guarantee the safety and 10 well-being of the prisoner. Id. at 832-33; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). 11 As “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment,” 12 plaintiff must allege facts showing the defendant acted with a “sufficiently culpable state of 13 mind.” Wilson, 501 U.S. at 297 (internal quotations marks, emphasis, and citations omitted). 14 Plaintiff claims that defendant La Rosa acted with deliberate indifference to plaintiff’s 15 safety through “his intentional disregard of COVID-19 protocol”. (ECF No. 1 at 9.) In 16 particular, plaintiff claims that defendant La Rosa failed to wear a mask on a number of occasions 17 while inside plaintiff’s dorm area. (Id. at 11, 19-20.) However, plaintiff has not alleged any facts 18 which indicate that he was injured or placed at any significant risk of serious harm as a result of 19 defendant La Rosa’s purported deliberate indifference. As such, plaintiff has not alleged 20 sufficient facts to support a deliberate indifference claim. See Williams v. Wood, 223 Fed. Appx. 21 670, 671 (9th Cir. 2007) (citing Farmer v. Brennan, 511 U.S. 825, 843 , (1994) (a plaintiff’s 22 “speculative and generalized fears of harm” are not sufficient to show a substantial risk of serious 23 harm). 24 2. Outdoor Exercise 25 The Ninth Circuit has found that “[d]eprivation of outdoor exercise violates the Eighth 26 Amendment rights of inmates confined to continuous and long-term segregation.” Keenan v. Hall, [27] 89 F.3d 1083, 1089 (9th Cir. 1996) (internal citation omitted). The court has also recognized that 28 //// 1 outdoor exercise privileges may be restricted for disciplinary purposes. LeMaire v. Maass, 12 2 F.3d 1444, 1458 (9th Cir. 1993); Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979). 3 Plaintiff claims that his outdoor exercise privileges were revoked for sixty days as a result 4 of an RVR accusing plaintiff of providing false information in an inmate grievance. (ECF No. 1 5 at 9.) Defendants may be able to show that a reasonable disciplinary justification exists for 6 restricting plaintiff’s access to outdoor exercise for this period. However, courts have regularly 7 permitted such claims to proceed on screening despite the possibility that defendants might have a 8 legitimate justification. See Witkin v. Wise, 2:19-cv-0974-KJM-KJN-P 2019 WL 3530370 , at *3 9 (E.D. Cal. Aug. 2, 2019); Underwood v. Cox, 1:16–cv–00597–AWI–EPG (PC), 2017 WL 10 6055828, *5 (E.D. Cal. Dec. 7, 2017) (findings and recommendations adopted by Underwood v. 11 Cox, 1:16–cv–00597–AWI–EPG (PC), 2018 WL 372359 (E.D. Cal. Jan. 11, 2018)); Thompson 12 v. Adams, 1:13–cv–00655–AWI–SKO, 2015 WL 1201353 , at *4 (E.D. Cal. Mar. 16, 2015) 13 (findings and recommendations adopted by Thompson v. Adams, 1:13–cv–00655–AWI–SKO, [14] 2015 WL 3603870 (E.D. Cal. Mar. 29, 2015). Here, the court will similarly find that plaintiff has 15 alleged sufficient facts to state a claim on screening. There may exist a legitimate penological 16 purpose for a sixty-day restriction of plaintiff’s access to outdoor exercise. However, this is a 17 fact-reliant question not suited for this stage of these proceedings. 18 Accordingly, plaintiff has alleged sufficient facts to state a claim for the deprivation of 19 outdoor exercise in violation of plaintiff’s Eighth Amendment rights. 20 AMENDING THE COMPLAINT 21 This court finds above that plaintiff’s complaint states cognizable claims First 22 Amendment claims against defendants Manning, Pasioles, Canela, Cooper, Avalos, Roy, and La 23 Rosa, as well as cognizable Eighth Amendment claims against defendants Manning, Pasioles, 24 Canela, Cooper, Avalos, and Roy. However, the plaintiff’s complaint fails to state any other 25 cognizable claim. 26 Plaintiff will be given the option to proceed on his cognizable claims or to file an 27 amended complaint to state additional claims against the above defendants or any other 28 //// 1 defendant. Any amended complaint must be complete in itself. The court cannot refer to a prior 2 complaint to understand the plaintiff’s claims. 3 If plaintiff chooses to file an amended complaint, he must address the problems with his 4 complaint that are explained above. In an amended complaint plaintiff must clearly identify each 5 defendant and the action that defendant took that violated his constitutional rights. The court is 6 not required to review exhibits to determine what plaintiff’s charging allegations are as to each 7 named defendant. If plaintiff wishes to add a claim, he must include it in the body of the 8 complaint. The charging allegations must be set forth in the amended complaint, so defendants 9 have fair notice of the claims plaintiff is presenting. That said, plaintiff need not provide every 10 detailed fact in support of his claims. Rather, plaintiff should provide a short, plain statement of 11 each claim. See Fed. R. Civ. P. 8(a). 12 Any amended complaint must show the federal court has jurisdiction, the action is brought 13 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 14 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 15 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 16 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (stating that a person subjects another to the 17 deprivation of a constitutional right if he does an act, participates in another’s act, or omits to 18 perform an act he is legally required to do that causes the alleged deprivation). “Vague and 19 conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v. 20 Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). 21 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 22 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 23 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 24 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 25 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 26 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 27 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 28 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 1 | set forth in short and plain terms. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) 2 | (‘Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus 3 | litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 4 An amended complaint must be complete in itself, without reference to any prior pleading. 5 | E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded. 6 | By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and has 7 | evidentiary support for his allegations, and for violation of this rule, the court may impose 8 | sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 9 CONCLUSION 10 For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED 11 | as follows: 12 1. Plaintiff's complaint states cognizable claims against defendants Manning, Pasioles, 13 Canela, Cooper, Avalos, Roy, and La Rosa for retaliation in violation of his First 14 Amendment rights. It also states a cognizable Eighth Amendment claim against 15 defendants Manning, Pasioles, Canela, Cooper, Avalos, and Roy. 16 2. The complaint fails to state any other cognizable claims or defendants. 17 3. Plaintiff may choose to proceed on his cognizable claims set out above or he may choose 18 to amend his complaint. 19 4. Within thirty (30) days of the date of this order plaintiff shall notify the court of how he 20 wishes to proceed. Plaintiff may use the form included with this order for this purpose. 21 5. Plaintiff is warned that his failure to comply with this order will result in a 22 recommendation that this action be dismissed. [23] Dated: September 16, 2022 [24] 26 BORAH BARNES 27,1 pp UNITED STATES MAGISTRATE JUDGE 38 DB/DB Prisoner Inbox/Civil Rights/S/mart1829.scrn_not [5] UNITED STATES DISTRICT COURT [6] FOR THE EASTERN DISTRICT OF CALIFORNIA [8] 9 ALEX LAMOTA MARTI, No. 2:21-cv-1829 DB P 10 Plaintiff, 11 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 12 TODD MANNING, et al., 13 Defendants. [14] 15 Check one: [16] 17 _____ Plaintiff wants to proceed immediately on his First Amendment retaliation claims against 18 defendants Manning, Pasioles, Canela, Cooper, Avalos, Roy, and La Rosa and his Eighth 19 Amendment claim against defendants Manning, Pasioles, Canela, Cooper, Avalos, and 20 Roy. Plaintiff understands that by going forward without amending the complaint he is 21 voluntarily dismissing all other claims and defendants. [22] 23 ____ Plaintiff wants to amend the complaint. [24] 25 DATED:_______________________ 26 Alex Lamota Marti Plaintiff pro se