1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 KEVIN L. MCCULLOM, 11 Case No. 21-01742 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH v. LEAVE TO AMEND 13

14 WENDY STILL, et al., 15 Defendants. 16

17 18 Plaintiff, a state prisoner currently confined at the Santa Rita Jail in Dublin, 19 California, filed the instant pro se civil rights action pursuant to

against 20 various Defendants within Alameda County and elsewhere. Dkt. Not. 5 at 2.1 Plaintiff’s 21 motion for leave to proceed in forma pauperis will be addressed in a separate order. 22

23 1 Plaintiff filed a six-page handwritten document requesting to open a “trillion dollar 42 U.S.C. 1983 civil rights complaint lawsuit in equity….” Dkt. No. 1 at 1. The Clerk of the 24 Court sent Plaintiff a notice directing him to file a complaint on the court form, Dkt. No. 2, which he did on March 31, 2021. Dkt. No. 4. Plaintiff then filed another form complaint 25 on April 9, 2021, which was far lengthier (32 pages) compared to the first complaint (8 pages). Dkt. No. 5. Accordingly, the Court deems the complaint filed under Docket No. 5 26 as the operative complaint in this action. Plaintiff indicates at the top of the complaint that this action is filed as “join[d]er to Case No. 21-cv-01172-BLF and Case No. 21-cv-01524- 27 BLF.” Dkt. No. 5 at 1. Those two actions have been dismissed with leave to amend. The 1 DISCUSSION 2 A. Standard of Review 3 A federal court must conduct a preliminary screening in any case in which a 4 prisoner seeks redress from a governmental entity or officer or employee of a 5 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 6 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 7 upon which relief may be granted or seek monetary relief from a defendant who is immune 8 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 9 construed. See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 10 To state a claim under

, a plaintiff must allege two essential 11 elements: (1) that a right secured by the Constitution or laws of the United States was 12 violated, and (2) that the alleged violation was committed by a person acting under the 13 color of state law. See West v. Atkins,

(1988). 14 B. Plaintiff’s Claims 15 Plaintiff names the following as Defendants in this action: Sheriff Gregory J. 16 Ahern; Medical Director Maria Luisita Magat, MD; Regional Director Ramond Herr, MD; 17 Alameda County Chief Probation Officer Ms. Wendy Still; court appointed attorneys 18 David T. Bryden, Mario Adrews, Jared C. winter, Stephen Avilla; “expert witness psyches 19 Jhon Chamberlain, MD; and Napa State Hospital “psyche” Mr. Cosgrove, MD. Dkt. No. 5 20 at 1, 2. Plaintiff claims that some of these Defendants “successfully evade[d]” civil 21 liabilities in a previous lawsuit for inadequate medical treatment for his HIV in 2015.

22 at 2-3. Plaintiff asserts that Defendants and state superior court judges were involved in 23 “one big corruption scandal.” Id. at 3. As with several of Plaintiff’s prior complaints,2 the 24 handwritten complaint in this matter is lengthy, i.e., 32 pages long, and contains 25 allegations that are disorganized and incoherent. Dkt. No. 5. His allegations include 26 1 inadequate medical treatment, id., false arrest and false imprisonment in state criminal 2 actions, id. at 4-5, inadequate representation by the public defender’s office, id. at 7, 3 conspiracy to violate his constitutional rights, id. at 8, challenges to evidence in criminal 4 matters, id. at 9-11, and HIPAA violations, id. at 13. Plaintiff repeats allegations from 5 other lawsuits against Judge Paul Delucchi involving conspiracy, harassment, and 6 intimidation. Dkt. No. 5-1 at 1-4. Plaintiff also alludes to errors in the police database, id. 7 at 6, 9, unlawful surveillance, id. at 11-13, solicitation to commit murder, id. at 28-29. 8 Plaintiff seeks injunctive relief, an investigation into his claims, and damages. Id. at 29- 9 30; Dkt. No. 5 at 3. 10 There are several problems with this complaint. First, none of allegations, even 11 liberally construed, state sufficient facts linked to specific state actors for the Court to 12 discern a cognizable claim under § 1983. Furthermore, Federal Rule of Civil Procedure 13 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is 14 entitled to relief.” “Specific facts are not necessary; the statement need only ‘“give the 15 defendant fair notice of what the . . . claim is and the grounds upon which it rests.”’” 16 Erickson v. Pardus,

(2007) (citations omitted). The complaint is neither 17 short nor plainly written to provide fair notice of any claims or the grounds upon which 18 they rest. Moreover, where the allegations in a complaint are “argumentative, prolix, 19 replete with redundancy and largely irrelevant,” the complaint is properly dismissed for 20 failure to comply with Rule 8(a). McHenry v. Renne,

(9th 21 Cir. 1996). But “verbosity or length is not by itself a basis for dismissing a complaint 22 based on Rule 8(a).” Hearns v. San Bernardino Police Dept.,

(9th 23 Cir. 2008). A complaint, even if lengthy, is permissible if it is “coherent, well-organized, 24 and state[s] legally viable claims.”

Here, Plaintiff’s complaint is incoherent, 25 disorganized, and fails to state any legally viable claim. 26 In addition, none of the allegations are obviously related, and therefore the 1 “A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as 2 independent or alternative claims, as many claims as it has against an opposing party.” 3 Fed. R. Civ. P. 18(a). Accordingly, “multiple claims against a single party are fine, but 4 Claim A against Defendant 1 should not be joined with unrelated Claim B against 5 Defendant 2.” George v. Smith,

(7th Cir. 2007). “Unrelated claims 6 against different defendants belong in different suits,” not only to prevent the sort of 7 “morass” that a multi-claim, multi-defendant suit can produce, “but also to ensure that 8 prisoners pay the required filing fees – for the Prison Litigation Reform Act limits to 3 the 9 number of frivolous suits or appeals that any prisoner may file without prepayment of 10 required fees.”

(citing

(g)). Rule 20(a) provides that parties may be 11 joined as defendants in one action only “if any right to relief is asserted against them 12 jointly, severally, or in the alternative with respect to or arising out of the same transaction, 13 occurrence, or series of transactions or occurrences; and any question of law or fact 14 common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). 15 The Court also notes that many of the allegations in this action are duplicative of 16 those raised in at least two other lawsuits pending before this Court. See supra at 1, fn. 1. 17 Duplicative or repetitious litigation of virtually identical causes of action is subject to 18 dismissal under

as malicious. Bailey v. Johnson,

, 1021 19 (5th Cir. 1988). An in forma pauperis complaint that merely repeats pending or previously 20 litigated claims may be considered abusive and dismissed under § 1915. Cato v. United 21 States,

, 1105 n.2 (9th Cir. 1995); Bailey,

. An in forma 22 pauperis complaint repeating the same factual allegations asserted in an earlier case, even 23 if now filed against new defendants, therefore is subject to dismissal as duplicative.

F.2d at 1021; Van Meter v. Morgan,

(8th Cir. 1975). 25 “Dismissal of the duplicative lawsuit, more so than the issuance of a stay or the enjoinment 26 of proceedings, promotes judicial economy and the “comprehensive disposition of 1 overruled on other grounds by Taylor v. Sturgell,

(2008). 2 Lastly, the references to various criminal proceedings indicate that the related claim 3 for damages may possibly be barred by Heck v. Humphrey,

(1994) 4 (to recover damages for an allegedly unconstitutional conviction or imprisonment or for 5 other harm caused by actions who unlawfulness would render a conviction or sentence 6 invalid, a

plaintiff must prove that the conviction or sentence has been 7 reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal 8 authorized to make such determination, or called into question by a federal court's issuance 9 of a writ of habeas corpus). A claim for damages bearing that relationship to a conviction 10 or sentence that has not been so invalidated is not cognizable under § 1983. Id. at 487. 11 Plaintiff shall be granted one opportunity to file an amended complaint to cure the 12 deficiencies discussed above. Plaintiff must comply with Rules 8(a)(2), 18(a) and 20(a) of 13 the Federal Rules of Civil Procedure. “Factual allegations must be enough to raise a right 14 to relief above the speculative level.” Bell Atlantic Corp. v. Twombly,

, 553- 15 56 (2007) (citations omitted). To state a claim that is plausible on its face, a plaintiff must 16 allege facts that “allow[] the court to draw the reasonable inference that the defendant is 17 liable for the misconduct alleged.” Ashcroft v. Iqbal,

(2009). Liability 18 may be imposed on an individual defendant under § 1983 only if Plaintiff can show that 19 the defendant proximately caused the deprivation of a federally protected right. See Leer 20 v. Murphy,

(9th Cir. 1988). A person deprives another of a 21 constitutional right within the meaning of section 1983 if he does an affirmative act, 22 participates in another’s affirmative act or omits to perform an act which he is legally 23 required to do, that causes the deprivation of which the plaintiff complaints. See Leer, 844 24 F.2d at 633. 25 /// 26 /// 1 CONCLUSION 2 For the foregoing reasons, the Court orders as follows: 3 1. The complaint is DISMISSED with leave to amend. Within twenty-eight 4 || (28) days of the date this order is filed, Plaintiff shall file an amended complaint to correct 5 || the deficiencies described above. The amended complaint must include the caption and 6 || civil case number used in this order, Case No. 21-01742 BLF (PR), and the words 7 || “AMENDED COMPLAINT” on the first page. If using the court form complaint, Plaintiff 8 || must answer all the questions on the form in order for the action to proceed. The amended 9 || complaint supersedes the original, the latter being treated thereafter as non-existent. 10 || Ramirez v. Cty. Of San Bernardino,

(9th Cir. 2015). Consequently, 11 || claims not included in an amended complaint are no longer claims and defendants not 2 named in an amended complaint are no longer defendants. See Ferdik v. Bonzelet, 963 E 13. || F.2d 1258, 1262 (9th Cir. 1992). S 14 2. Failure to respond in accordance with this order in the time provided 3 15 || will result in the dismissal with prejudice of this action for failure to state a claim, 16 without further notice to Plaintiff. 5 17 3. The Clerk shall include two copies of the court’s complaint with a copy of 5 18 this order to Plaintiff. 19 IT IS SO ORDERED. 29 || Dated: August 10, 2021 feds Lays freemen BETH LABS F EEMAN United States District Judge 22 23 24 25. |] pRO-SEIBLFICR 2NOTTOMCCullom_dwvta 26 27