(PC) Abalos v. Lizarraga

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JESUS ABALOS, No. 2:20-cv-1699 KJN P 12 Plaintiff, 13 v. ORDER JOE LIZARRAGA, et al., 15 Defendants.

17 Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.

21 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).

22 Accordingly, the request to proceed in forma pauperis is granted.

23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 3 U.S.C. § 1915(b)(2).

4 Screening 5 The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

10 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at 19 1227.

20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

24 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Id. However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the defendant fair notice of what the . .

28 . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp., 550 U.S. at 555) (citations and internal quotations marks omitted).

2 In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, id., and construe the pleading in the light most favorable to the plaintiff.

4 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 5 U.S. 183 (1984).

6 The Civil Rights Act 7 The Civil Rights Act under which this action was filed provides as follows: 8 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the 9 deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at 10 law, suit in equity, or other proper proceeding for redress.

11 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no affirmative link between the incidents of police misconduct and the adoption of any plan or policy demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

21 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 26 438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 1 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal participation is insufficient).

3 Plaintiff’s Allegations 4 On October 1, 2018, at Mule Creek State Prison, plaintiff was found unconscious and unresponsive while on the floor. Defendant Officer C. Parham allegedly put plaintiff in handcuffs and leg restraints with such rough mishandling that plaintiff suffered severe damage to his wrists and ankles, torn flesh, mutilation and destruction of his limbs, mangling to the bones.

8 (ECF No. 1 at 3.) To cover up such excessive force, defendant Parham allegedly planted a bindle of heroin, fabricated evidence and filed a false report against plaintiff. Plaintiff made a statement that he overdosed because he was trying to kill himself. Plaintiff names Warden Lizarraga, Correctional Officer C. Parham, ISU Officer J. Scheurer, and John Does 1 - 10 as defendants.

12 Discussion 13 The court has reviewed plaintiff’s complaint and, for the limited purposes of § 1915A screening, finds that it states a potentially cognizable claim against defendant Parham. See 28 U.S.C. § 1915A.

16 As to the remaining defendants, plaintiff includes no charging allegations. Therefore, plaintiff’s complaint does not state a cognizable claim against the remaining defendants. The claims against those defendants are hereby dismissed with leave to amend.

19 Plaintiff is cautioned that absent facts connecting defendant Lizarraga to the acts or omissions on October 1, 2018, it is unlikely plaintiff can state a cognizable claim against the warden because there is no supervisorial liability based solely on his role as warden. The role of defendant ISU Officer J. Scheurer is also unclear, but plaintiff is under the same obligation to demonstrate through factual allegations that defendant Scheurer was involved in the use of excessive force on October 1, 2018. In addition, plaintiff is cautioned that he may only raise related claims against related defendants in this action.1 For example, if plaintiff intends to name A plaintiff may properly assert multiple claims against a single defendant. Fed. Rule Civ. P. 18.

27 In addition, a plaintiff may join multiple defendants in one action where “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions and occurrences” and “any question of law ISU Officer Scheurer as a defendant based on his subsequent investigation of the incident, unless defendant Parham was also involved in the investigation, plaintiff would have to pursue an action against Scheurer in a separate action.

4 As to the defendants named as John Does 1 -10, plaintiff does not identify each defendant doe and his or her alleged act or omission which plaintiff contends violated his constitutional rights. This pleading is insufficient to put prospective defendants on notice of their alleged actions or omissions that plaintiff claims violate his federal rights. In order to link these doe defendants to the alleged acts or omissions that demonstrate a violation of plaintiff's federal rights, plaintiff is granted leave to amend, to either name the defendants involved, or list the doe defendants involved. If plaintiff can only list these defendants as John Doe, plaintiff must identify the John Doe as best as possible, and allege specific acts that these doe defendants did, such as “John Doe 1 did X” and “John Doe 2 and 3 did Y.” Plaintiff is reminded that “[a] plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

16 In addition, plaintiff’s use of Doe defendants is problematic, see Gillespie v. Civiletti, 629 17 F.2d 637, 642 (9th Cir. 1980), and ultimately unnecessary. Rule 15 of the Federal Rules of Civil Procedure, not state law “Doe” pleading practices, governs whether new defendants may be added and if so, whether the claims against them would relate back to the filing of the initial complaint. Should plaintiff learn the identities of the “Doe” parties he wishes to serve, he must promptly move pursuant to Rule 15 to file an amended complaint to add them as defendants. See Brass v. County of Los Angeles, 328 F.3d 1192, 1197-98 (9th Cir. 2003). If the timing of his amended complaint raises questions as to the statute of limitations, plaintiff must satisfy the or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). Unrelated claims against different defendants must be pursued in separate lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). This rule is intended “not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees -- for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).” George, 507 F.3d at 607.

1 requirements of Rule 15(c), which is the controlling procedure for adding defendants whose identities were discovered after commencement of the action. Also, unknown persons cannot be served with process until they are identified by their real names. The court will not investigate the names and identities of unnamed defendants.

5 Plaintiff’s Options 6 Plaintiff may proceed forthwith to serve defendant Parham and pursue claims against only that defendant or he may delay serving any defendant and attempt to state a cognizable claim against the remaining defendants.

9 If plaintiff elects to attempt to amend his complaint to state a cognizable claim against the remaining defendants, he has thirty days in which to do so. He is not obligated to amend his complaint.

12 If plaintiff elects to proceed forthwith against defendant Parham, against whom he has stated a potentially cognizable claim for relief, then within thirty days he must so advise the court by returning the appended form. In this event the court will construe plaintiff’s election as consent to dismissal of all claims against the remaining defendants without prejudice.

16 Plaintiff is advised that in an amended complaint he must clearly identify each defendant and the action that defendant took that violated his constitutional rights. The court is not required to review exhibits to determine what plaintiff’s charging allegations are as to each named defendant. The charging allegations must be set forth in the amended complaint so defendants have fair notice of the claims plaintiff is presenting.

21 Any amended complaint must show the federal court has jurisdiction, the action is brought in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must contain a request for particular relief. Plaintiff must identify as a defendant only persons who personally participated in a substantial way in depriving plaintiff of a federal constitutional right.

25 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, participates in another’s act or omits to perform an act he is legally required to do that causes the alleged deprivation). If plaintiff contends he was the victim of a conspiracy, he must identify the participants and allege their agreement to deprive him of a specific federal constitutional right.

2 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).

6 A district court must construe a pro se pleading “liberally” to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez, 203 F.3d at 1130-31. While detailed factual allegations are not required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft, 556 U.S. at 678 (quoting Bell Atlantic Corp., 550 U.S. at 570).

14 A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that 15 the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for 16 more than a sheer possibility that a defendant has acted unlawfully.

Where a complaint pleads facts that are merely consistent with a 17 defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.

19 Ashcroft, 556 U.S. at 678 (citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id. at 1950.

22 An amended complaint must be complete in itself without reference to any prior pleading.

23 Local Rule 220; See Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint supersedes the original, the latter being treated thereafter as non- existent.’” (internal citation omitted)). Once plaintiff files an amended complaint, the original pleading is superseded.

27 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and has evidentiary support for his allegations, and for violation of this rule the court may impose sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11.

2 A prisoner may bring no § 1983 action until he has exhausted such administrative remedies as are available to him. 42 U.S.C. § 1997e(a). The requirement is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001). California prisoners or parolees may appeal “departmental policies, decisions, actions, conditions, or omissions that have a material adverse effect on the[ir] welfare. . . .” Cal. Code Regs. tit. 15, §§ 3084.1, et seq. An appeal must be presented on a CDC form 602 that asks simply that the prisoner “describe the problem” and “action requested.”

8 Therefore, this court ordinarily will review only claims against prison officials within the scope of the problem reported in a CDC form 602 or an interview or claims that were or should have been uncovered in the review promised by the department.

11 Accordingly, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

13 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.

18 3. Claims against defendants Lizzaraga and Scheurer are dismissed with leave to amend.

19 Within thirty days of service of this order, plaintiff may amend his complaint to attempt to state cognizable claims against these defendants. Plaintiff is not obliged to amend his complaint.

21 4. The allegations in the pleading are sufficient to state a potentially cognizable claim against defendant Parham. See 28 U.S.C. § 1915A. Within thirty days of service of this order plaintiff may return the attached Notice of Election to proceed against defendant Parham. The court will then order the United States Marshal to execute service of process pursuant to Fed. R. Civ. P. 4. Defendant Parham will be required to respond to plaintiff’s allegations within the deadlines stated in Fed. R. Civ. P. 12(a)(1). In this event, the court will construe plaintiff’s election to proceed forthwith as consent to an order dismissing his defective claims against the remaining defendants without prejudice.

MwA 2 OU UVM EM UING IN RMU Pa vere OY OV A 1 In the alternative, on the appended form, plaintiff should indicate he is choosing to amend | the complaint and delay service of process, and return the form and the proposed amended | complaint to the court within thirty days.

4 5. Failure to comply with this order will result in a recommendation that this action be | dismissed.

6 | Dated: September 1, 2020 Fens Arn g KENDALL J. NE UNITED STATES MAGISTRATE JUDGE /aba1699.140 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JESUS ABALOS, No. 2:20-cv-1699 KJN P 12 Plaintiff, 13 v. NOTICE OF ELECTION JOE LIZARRAGA, et al., 15 Defendants.

17 Plaintiff submits the following documents in compliance with the court’s order filed ___________________.

19 ______ Plaintiff consents to the dismissal of defendants Lizarraga and Scheurer without prejudice, and asks the court to proceed with service of process on 20 defendant Parham.

21 OR 22 ______ Plaintiff opts to file an amended complaint and delay service of process.

DATED: _______________________________ 25 Plaintiff