1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA

10

11 Case No. 23-cv-00695 BLF JULIUS LEE JACKSON, 12 ORDER OF DISMISSAL WITH Plaintiff, LEAVE TO AMEND 13 v. 14

15 ED BARBERINI, et al.,

16 Defendants.

17

18 Plaintiff, a state prisoner, filed a civil rights complaint pursuant to

19 against various officers, officials, and entities within the City and County of San Mateo. 20 Dkt. No. 1. This matter was reassigned to the undersigned. Dkt. Nos. 7, 8. Plaintiff’s 21 motion for leave to proceed in forma pauperis has been granted in a separate order. Dkt. 22 Nos. 2, 6. 23 DISCUSSION 24 I. Standard of Review 25 A federal court must conduct a preliminary screening in any case in which a 26 prisoner seeks redress from a governmental entity or officer or employee of a 27 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 1 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 2 upon which relief may be granted or seek monetary relief from a defendant who is immune 3 from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally 4 construed. See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1988). 5 To state a claim under

, a plaintiff must allege two essential 6 elements: (1) that a right secured by the Constitution or laws of the United States was 7 violated, and (2) that the alleged violation was committed by a person acting under the 8 color of state law. See West v. Atkins,

(1988). 9 II. Plaintiff’s Claims 10 Plaintiff names the following as Defendants: Chief Ed Barberini of the San Mateo 11 Police Department (“SMPD”); Officer Phaymany Syvongxay of the SMPD; Sheriff Carlos 12 Bolanos of San Mateo County; the San Mateo County Jail; Officer M. Vazquez of the Jail; 13 the City of San Mateo; the County of San Mateo; and the San Mateo County Sheriff’s 14 Department. Dkt. No. 1 at 2. 15 Plaintiff’s allegations include the following: (1) on April 3, 2022, he was subject to 16 cruel and unusual punishment under the Eighth Amendment when “Defendants” tried to 17 kill him by intentionally placing inmates in his cell who had recently tested positive for 18 Covid-19 on December 21, 2022; (2) on April 3, 2022, he was arrested by Defendants 19 Barberini and Syvongxay and booked on drug charges that were later dropped; (3) on 20 September 3, 2022, Defendants Bolanos and Vazquez intentionally planted illegal drugs on 21 him and lied in documents stating that Plaintiff had given it to them; (4) Defendants 22 Barberini and Syvongxay have been stalking and threatening him for years, setting him up 23 with bogus cases and causing unjust harm; (5) in 2016, Defendants used a fake photo to set 24 Plaintiff up for a robbery, sending him to prison for approximately 5 and half years; (6) in 25 2001, Defendants used their corrupt influence to have a superior court judge enter a 26 directed guilty verdict for which Plaintiff served 14 years of a 25 years to life sentence 1 (third strike offense); and (7) in 1997, Plaintiff served four years in prison for throwing a 2 bottle of beer at a wall, giving him a second strike which was “set up” by Defendants 3 “using corruption and the abuse of the charging function.” Dkt. No. 1 at 2-3. Plaintiff 4 seeks damages for the years spent incarcerated by “Defend[ants] and or conspirators 5 working in concert with them from 1984 to today[].” Id. at 3. 6 A. Challenged Convictions 7 In order to recover damages for an allegedly unconstitutional conviction or 8 imprisonment, or for other harm caused by actions whose unlawfulness would render a 9 conviction or sentence invalid, a

plaintiff must prove that the conviction 10 or sentence has been reversed on direct appeal, expunged by executive order, declared 11 invalid by a state tribunal authorized to make such determination, or called into question 12 by a federal court's issuance of a writ of habeas corpus. Heck v. Humphrey,

, 13 486-487 (1994). A claim for damages bearing that relationship to a conviction or sentence 14 that has not been so invalidated is not cognizable under § 1983. Id. at 487. When a state 15 prisoner seeks damages in a § 1983 suit, the district court must therefore consider whether 16 a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction 17 or sentence; if it would, the complaint must be dismissed unless the plaintiff can 18 demonstrate that the conviction or sentence has already been invalidated. Id. 19 The complaint indicates that Plaintiff is currently incarcerated at North Kern State 20 Prison. Dkt. No. 1 at 1. The allegations indicate that Plaintiff already has three strikes 21 against him. See supra at 2. However, the allegations also indicate that he was released at 22 some point, and then again arrested and imprisoned, likely for violating conditions of 23 parole, based on allegedly bogus drug charges. Id. Plaintiff raises allegations that 24 implicate the validity of his past convictions, e.g., the 2001 and 2016 convictions. 25 However, there is no indication that any of those convictions or sentences have been 26 invalidated. Therefore, his claim for damages “for every year [he] was incarcerated” since 1 1984 must be dismissed without prejudice under the rationale of Heck because success on 2 his claims would necessarily imply the invalidity of Plaintiff’s convictions. 512 F.3d at 3 487. Until and unless those convictions are invalidated, Plaintiff cannot bring a claim for 4 damages under § 1983. Plaintiff shall be granted an opportunity to file an amended 5 complaint to allege facts showing that the challenged convictions have been invalidated 6 and therefore not barred by Heck. If the convictions have not been invalidated, then the 7 claims must be dismissed.1 Id. 8 If any of the convictions have been invalidated, Plaintiff’s claims challenging those 9 convictions may have to be pursued in separate action(s) if they are improperly joined 10 herein for the reasons discussed below. See infra at 6. 11 B. Exposure to Covid-19 12 Plaintiff’s allegation regarding his exposure to Covid-19 infected inmates indicates 13 a challenge to conditions of confinement. The Constitution does not mandate comfortable 14 prisons, but neither does it permit inhumane ones. See Farmer v. Brennan,

, 15 832 (1994). The treatment a prisoner receives in prison and the conditions under which he 16 is confined are subject to scrutiny under the Eighth Amendment. See Helling v. McKinney, 17

(1993). The Eighth Amendment imposes duties on these officials, who 18 must provide all prisoners with the basic necessities of life such as food, clothing, shelter, 19 sanitation, medical care and personal safety. See Farmer,

; DeShaney v. 20 Winnebago County Dep't of Social Servs.,

(1989). A prison official 21 violates the Eighth Amendment when two requirements are met: (1) the deprivation 22 alleged must be, objectively, sufficiently serious, Farmer,

(citing Wilson v. 23 Seiter,

(1991)), and (2) the prison official possesses a sufficiently 24

25 1 If Plaintiff wishes to challenge the constitutionality of a conviction or sentence, he may do so by filing a petition for writ of habeas corpus under

, provided he 26 has not previously attempted to do so and has exhausted judicial remedies. See

(b)(1), 2254(b). 1 culpable state of mind,

(citing Wilson,

). 2 A prison official is deliberately indifferent if he knows that a prisoner faces a 3 substantial risk of serious harm and disregards that risk by failing to take reasonable steps 4 to abate it. Farmer,

. The prison official must not only “be aware of facts 5 from which the inference could be drawn that a substantial risk of serious harm exists,” but 6 “must also draw the inference.”

If a prison official should have been aware of the risk, 7 but did not actually know, the official has not violated the Eighth Amendment, no matter 8 how severe the risk. Gibson v. County of Washoe,

(9th Cir. 2002). In 9 order for deliberate indifference to be established, therefore, there must be a purposeful act 10 or failure to act on the part of the defendant and resulting harm. See McGuckin v. Smith, 11

(9th Cir. 1992), overruled in part on other grounds by WMX 12 Technologies, Inc. v. Miller,

(9th Cir. 1997) (en banc); Shapley v. 13 Nevada Bd. of State Prison Comm’rs,

(9th Cir. 1985). 14 Plaintiff’s allegations are insufficient to state an Eighth Amendment claim. He 15 claims Defendants violated his Eighth Amendment right when they intentionally exposed 16 him to inmates infected with Covid-19. However, the allegations are unclear as to the 17 order of events. He claims that on April 3, 2022, Defendants attempted to kill him by 18 intentionally placing inmates in his cell “who had just tested positive for the Covid-19 19 virus on December 21, 2022.” Dkt. No. 1 at 2. This timeline simply does not make sense. 20 Furthermore, Plaintiff does not allege any harm suffered by this exposure as there is no 21 allegation that he caught Covid-19 from the exposure and suffered physical harm as a 22 result. Even if Plaintiff tested positive but was asymptomatic, there would be no resulting 23 harm. See McGuckin,

. Moreover, Plaintiff fails to allege how each 24 named Defendant is directly responsible for the alleged danger to his health and safety. 25 See Farmer,

. Nowhere in his statement of claim does he describe the 26 individual actions of any of the named defendants to establish that they were each 1 personally involved in the alleged exposure to Covid-19, or much less that they each acted 2 with deliberate indifference. Plaintiff shall be granted leave to amend this claim to allege 3 specific facts so that the Court can determine whether he states a cognizable Eighth 4 Amendment claim. 5 C. False Arrest 6 Plaintiff alleges that Chief Barberini and Officer Syvongxay planted evidence 7 (illegal drugs) and that Sheriff Bolanos and Officer Vazquez lied in their statements. See 8 supra at 2. Plaintiff alleges that the drug charges were later dropped. Id. 9 The Fourth Amendment requires that an arrest be supported by probable cause. 10 Atwater v. City of Lago Vista,

(2001); Michigan v. Summers,

(1981) (an arrest is unlawful unless there is probable cause to support it). A 12 claim of bad faith in making an arrest may also be a cause of action under § 1983 as an 13 illegal and unconstitutional arrest. See Bretz v. Kelman,

(9th Cir. 14 1985) (en banc). Based on his allegations, Plaintiff may have a claim for false arrest. 15 Heck generally bars claims challenging the validity of an arrest or prosecution. See 16 Smithart v. Towery,

(9th Cir. 1996) (Heck bars plaintiff’s claims that 17 defendants lacked probable cause to arrest him and brought unfounded criminal charges 18 against him). But even if the claim was not barred, it does not appear to be related to 19 Plaintiff’s claim regarding unconstitutional prison conditions (Covid-19 exposure). 20 “A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, 21 as independent or alternative claims, as many claims as it has against an opposing party.” 22 Fed. R. Civ. P. 18(a). Accordingly, “multiple claims against a single party are fine, but 23 Claim A against Defendant 1 should not be joined with unrelated Claim B against 24 Defendant 2.” George v. Smith,

(7th Cir. 2007). “Unrelated claims 25 against different defendants belong in different suits,” not only to prevent the sort of 26 “morass” that a multi-claim, multi-defendant suit can produce, “but also to ensure that 1 prisoners pay the required filing fees – for the Prison Litigation Reform Act limits to 3 the 2 number of frivolous suits or appeals that any prisoner may file without prepayment of 3 required fees.”

(citing

(g)). 4 Furthermore, parties may be joined as defendants in one action only “if any right to 5 relief is asserted against them jointly, severally, or in the alternative with respect to or 6 arising out of the same transaction, occurrence, or series of transactions or occurrences; 7 and any question of law or fact common to all defendants will arise in the action.” Fed. R. 8 Civ. P. 20(a)(2). “A buckshot complaint that would be rejected if filed by a free person – 9 say, a suit complaining that A defrauded plaintiff, B defamed him, C punched him, D 10 failed to pay a debt, and E infringed his copyright, all in different transactions – should be 11 rejected if filed by a prisoner.” George v. Smith,

(7th Cir. 2007) (noting 12 that, in prisoner complaint seeking to join 24 defendants and approximately 50 distinct 13 claims, prisoner made no effort to show that 24 defendants he named had participated in 14 the same transaction or series of transactions or that a question of fact is common to all 15 defendants). 16 As discussed above, Plaintiff does not allege which specific Defendants were 17 responsible for his exposure to Covid-19. See supra at 5. Unless Plaintiff is able to allege 18 that at least one Defendant was responsible for both the unlawful prison condition and the 19 false arrest, Plaintiff cannot pursue both claims in the same action. This is also true for 20 any claims challenging past convictions that have been invalidated and not barred by Heck 21 as discussed above. See supra at 3-4. Furthermore, defendants may not be joined in the 22 same action unless a question of law or fact is common to all of them. 23 Plaintiff shall be granted leave to amend to attempt to show that the false arrest 24 claim is not barred by Heck, and that the claims and defendants in this action are properly 25 joined under Rules 18(a) and 20(a). 26 /// 1 D. Amended Complaint 2 In preparing an amended complaint, Plaintiff should keep the following principles 3 in mind. Liability may be imposed on an individual defendant under § 1983 only if 4 Plaintiff can show that the defendant proximately caused the deprivation of a federally 5 protected right. See Leer v. Murphy,

(9th Cir. 1988); Harris v. City of 6 Roseburg,

(9th Cir. 1981). A person deprives another of a 7 constitutional right within the meaning of section 1983 if he does an affirmative act, 8 participates in another’s affirmative act or omits to perform an act which he is legally 9 required to do, that causes the deprivation of which the plaintiff complains. See Leer, 844 10 F.2d at 633. 11 12 CONCLUSION 13 For the reasons state above, the Court orders as follows: 14 1. The complaint is DISMISSED with leave to amend. Within twenty-eight 15 (28) days from the date this order is filed, Plaintiff shall file an amended complaint using 16 the court’s form complaint to correct the deficiencies described above. The amended 17 complaint must include the caption and civil case number used in this order, i.e., Case No. 18 C 23-cv-00695 BLF (PR), and the words “AMENDED COMPLAINT” on the first page. 19 Plaintiff must answer all the questions on the form in order for the action to proceed. 20 Plaintiff is reminded that the amended complaint supersedes the original, and Plaintiff may 21 not make references to the original complaint. Claims not included in the amended 22 complaint are no longer claims and defendants not named in an amended complaint are no 23 longer defendants. See Ferdik v. Bonzelet,

(9th Cir. 1992). 24 2. Failure to respond in accordance with this order by filing an amended 25 complaint in the time provided will result in the dismissal of this action with 26 prejudice for failure to state a claim without further notice to Plaintiff. 1 3. The Clerk shall include two copies of the court’s complaint with a copy of 2 || this order to Plaintiff. 3 IT ISSO ORDERED. 4 || Dated: __July 6, 2023 feiinfhacncan BETH LABSON FREEMAN 5 United States District Judge 6 7 8 9 10 11 g 15

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