1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 ISMAEL VILLARREAL, Case No. 5:20-cv-01942-VBF-AFM

13 Plaintiff, ORDER DISMISSING COMPLAINT 14 v. 15 RALPH DIAZ, et al., 16 Defendants. 17 18 On September 8, 2020, plaintiff, a state prisoner proceeding pro se, filed this 19 civil rights action pursuant to

in the Eastern District of California. 20 (ECF No. 1.) Plaintiff is incarcerated at the Ironwood State Prison (“ISP”) in 21 Riverside County. On September 17, 2020, the case was transferred to the Central 22 District of California. (ECF No. 6.) Plaintiff filed a Request to Proceed Without 23 Prepayment of Filing Fees, which was granted. (See ECF Nos. 2, 4-5, 9.) 24 In the Complaint, plaintiff names as defendants several individuals based in 25 Sacramento including the Secretary, Undersecretary, and Director of the California 26 Department of Corrections and Rehabilitation (“CDCR”); Anthony Carter, an 27 individual; Steven Escobar, an attorney at the Office of Administrative Law; and 28 Appeals Examiner W. Sinkovich. (ECF No. 1 at 3-5.) Plaintiff also names as 1 defendants P. Birdsong, an Appeals Coordinator at ISP; Chelsea Armenta, an Office 2 Service Supervisor at ISP; ISP Associate Warden S. Moore; and ISP Chief Deputy 3 Warden R.W. Smith. (Id. at 4-5.) All defendants are named in their individual 4 capacities. (Id. at 3-5.) Plaintiff seeks damages and injunctive relief in the form of 5 unspecified “training of CDCR staff.” (Id. at 12.) 6 In the body of the Complaint, plaintiff lists a “Claim I” and a “Claim II.” 7 Plaintiff appears to be alleging claims under the First Amendment for retaliation and 8 violations of his right to petition the government. (ECF No. 1 at 8-10.) Plaintiff also 9 alleges a “First Cause of Action” and a “Second Cause of Action,” both of which 10 appear to allege retaliation. (Id. at 10-11.) In an attachment to the Complaint that is 11 entitled “Supplemental Points and Authorities,” plaintiff appears to allege additional 12 claims, referencing a “right to petition,” “retaliatory policy,” conspiracy, and state 13 law. (ECF No. 1 at 13-17.) 14 In accordance with the mandate of the Prison Litigation Reform Act of 1995 15 (“PLRA”), the assigned Magistrate Judge screened the Complaint to determine 16 whether the action is frivolous or malicious; fails to state a claim on which relief may 17 be granted; or seeks monetary relief against a defendant who is immune from such 18 relief. See 28 U.S.C. §§ 1915A, 1915(e)(2); 42 U.S.C. § 1997e(c)(1). 19 The screening of a pleading under the foregoing statutes is governed by the 20 same standard as applied in deciding a motion to dismiss pursuant to Fed. R. Civ. P. 21 12(b)(6). See Rosati v. Igbinoso,

(9th Cir. 2015). A complaint 22 may be dismissed as a matter of law for failure to state a claim for two reasons: 23 (1) lack of a cognizable legal theory; or (2) insufficient facts alleged under a 24 cognizable legal theory. See, e.g., Kwan v. SanMedica Int’l,

, 1093 25 (9th Cir. 2017). In determining whether the pleading states a claim on which relief 26 may be granted, its allegations of material fact must be taken as true and construed 27 in the light most favorable to plaintiff. See, e.g., Soltysik v. Padilla,

, 28 444 (9th Cir. 2018). However, the “tenet that a court must accept as true all of the 1 allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft 2 v. Iqbal,

(2009). Since plaintiff is appearing pro se, the allegations 3 of the pleading must be construed liberally and plaintiff afforded the benefit of any 4 doubt. See Hebbe v. Pliler,

(9th Cir. 2010); Alvarez v. Hill, 518

, 1158 (9th Cir. 2008). Nevertheless, the Supreme Court has held that “a 6 plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires 7 more than labels and conclusions, and a formulaic recitation of the elements of a 8 cause of action will not do. . . . Factual allegations must be enough to raise a right to 9 relief above the speculative level . . . on the assumption that all the allegations in the 10 complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550

(2007) (internal citations omitted, alteration in original); see also Iqbal, 12

(To avoid dismissal for failure to state a claim, “a complaint must 13 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is 14 plausible on its face.’ . . . A claim has facial plausibility when the plaintiff pleads 15 factual content that allows the court to draw the reasonable inference that the 16 defendant is liable for the misconduct alleged.” (internal citation omitted)). 17 Additionally, dismissal may be appropriate if a complaint violates Rule 8 of the 18 Federal Rules of Civil Procedure (“Rule 8”). McHenry v. Renne,

, 1177- 19 79 (9th Cir. 1996); Nevijel v. N. Coast Life Ins. Co.,

(9th Cir. 20 1981). Failure to comply with Rule 8 constitutes an independent basis for dismissal 21 of a pleading that applies even if the claims are not found to be “wholly without 22 merit.” See McHenry,

. 23 Following review of the Complaint, the Magistrate Judge found that it fails to 24 comply with Rule 8 because it does not include a short and plain statement of each 25 claim that is sufficient to give each defendant fair notice of what plaintiff’s claims 26 are and the grounds upon which they rest. The Magistrate Judge found that it is 27 unclear from plaintiff’s Complaint the number of federal claims being raised, the 28 factual basis for any federal civil rights claim, or what actions any named defendant 1 is alleged to have taken that plaintiff is alleging give rise to a federal civil rights 2 claim. Accordingly, the Magistrate Judge found that the Complaint fails to meet the 3 minimal requirement of Rule 8 that a pleading allow each defendant to discern what 4 he or she is being sued for. See McHenry,

; see also Twombly, 550 5 U.S. at 555 (“[f]actual allegations must be enough to raise a right to relief above the 6 speculative level”). Further, the allegations were found to be insufficient to state a 7 federal civil rights claim on which relief may be granted against any defendant. 8 Accordingly, the Complaint was dismissed with leave to amend the pleading 9 to correct the deficiencies as discussed in the Order Dismissing Complaint with 10 Leave to Amend. (ECF No. 15; “Order Dismissing.”) Plaintiff was ordered, if he 11 wished to pursue this action, to file a First Amended Complaint no later than 12 December 23, 2020, remedying the deficiencies discussed in the Order Dismissing. 13 Further, plaintiff was admonished that, if he failed to timely file a First Amended 14 Complaint or failed to remedy the deficiencies of his pleading, then his action would 15 be dismissed without further leave to amend and with prejudice for failure to state a 16 claim. (Id. at 6-7.) 17 Plaintiff did not file an amended pleading. Instead, he filed a “Motion for 18 Relief” challenging the Order Dismissing. Plaintiff argued that the Order Dismissing 19 was “erroneous and contrary to law.” Plaintiff requested that the defendants be 20 served with the Complaint, which had already been dismissed. (ECF No. 16.) This 21 Court denied plaintiff’s Motion for Relief and affirmed the Order Dismissing. (ECF 22 No. 20.) Next, plaintiff filed a document entitled, in part, “Notice of Election to 23 Stand on the Complaint.” (ECF No. 22; “Notice of Election.”) In his Notice of 24 Election, plaintiff stated that he had “already advised the court that he will forego 25 amendment in order to obtain an appealable final judgment” and that he “elects to 26 forego amendment and stand on the complaint.” (Id. at 1-2.) Plaintiff, however, also 27 sought to continue this action and argued in his Notice of Election that his Complaint 28 1 has “adequately state[d] a claim for relief.” (Id. at 2.)1 2 Based on plaintiff’s requests to have the dismissed Complaint served, it was 3 not clear that plaintiff’s election to “Stand on the Complaint” was intended to obtain 4 a final order to expedite appellate review. Plaintiff’s repeated requests for service of 5 the dismissed Complaint were contrary to his stated intent to stand on his Complaint 6 and are not in accordance with the course of action outlined in Edwards v. Marin 7 Park, Inc.,

(9th Cir. 2004). Therefore, on July 23, 2021, the 8 Magistrate Judge issued an Order to Show Cause. (ECF No. 27; “OSC.”) In the 9 OSC, plaintiff was admonished that, if he wishes to “obtain an appealable final 10 judgment” in this action, then he need only request that the action be dismissed in 11 order to obtain a judgment from which he may appeal. As set forth in the OSC, the 12 Ninth Circuit has instructed that district courts should permit plaintiffs to exercise 13 their “right to stand on a complaint” and then file “an appeal on the merits of the 14 question whether the complaint is adequate as a matter of law.” Edwards,

. 16 On August 16, 2021, plaintiff filed a Response to the OSC, entitled “Election 17 to Stand on Complaint.” (ECF No. 28; “Response.”) In the Response, plaintiff 18 indicates that he believes his Complaint adequately states a claim for relief and he 19 wishes “to expedite appellate review of the case.” (Id. at 1.) Plaintiff states that he 20 does not intend to file an amended pleading because he “believes that amendment is 21 unnecessary.” (Id. at 2.) The Response does not explicitly request dismissal of the

22 1 Within his “Notice of Election,” plaintiff also included a Motion to Disqualify both this District 23 Judge and the assigned Magistrate Judge. Plaintiff’s Motion to Disqualify subsequently was denied by referred District Judge Scarsi on June 14, 2021. (ECF No. 25.) Plaintiff next filed a document 24 entitled “Objection to Judge Scarsi’s Order denying Plaintiffs [sic] recusal motion; Response to (Doc 23), Requesting the court to vacate Judge Fairbanks [sic] order, directing Defendants to reply; 25 Requesting the court to make a Final determination of Plaintiffs [sic] motion to Stand on Complaint 26 (Doc 22).” (ECF No. 26; “Plaintiff’s Objection.”) In the Objection, plaintiff states that he “disagrees with Judge Scarsis [sic] findings of fact and conclusion of law and objects to his denial 27 [sic]” (id. at 1); seeks a “final determination on his previous motion to Stand on Complaint” (id. at 1, 3); and seeks to have District Judge Fairbank’s order (citing ECF No. 23) vacated or the Court 28 “serve the complaint to [sic] the defendants so that litigation can begin” (ECF No. 26 at 1, 3). 1 action, but states that plaintiff wishes to “obtain an appeallable [sic] final judgment 2 and expedite appellate review.” (Id. at 1-2.) Further, the Response cites Edwards, 3 356 F.3d at 1064-65. (Id.) In Edwards, the Ninth Circuit held that, when a “plaintiff 4 makes an affirmative choice not to amend [a pleading], and clearly communicates 5 that choice to the court,” the dismissal “ripens into a final, appealable judgment” 6 pursuant to Rule 12(b)(6). Edwards, 356 F.3d at 1065. 7 Plaintiff has now clearly notified the Court of his affirmative choice to stand 8 on his Complaint and seek “an appeal on the merits of the question whether the 9 complaint is adequate as a matter of law.” Edwards,

. Accordingly, 10 Judgment shall be entered dismissing this action with prejudice for failure to state a 11 claim. 12 IT IS SO ORDERED. 13 14 DATED: September 27, 2021 /s/ Valerie Baker Fairbank ___________________________________ 15 VALERIE BAKER FAIBANK 16 UNITED STATES DISTRICT JUDGE

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