(PC) Foust v. Ankintola

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA CARL FOUST, No. 2:23-cv-1208 AC P 12 Plaintiff, 13 v. ORDER OMONIYI TEMITOPE ANKINTOLA, et al., Defendants.

17 Plaintiff is a state prisoner proceeding pro se. Currently before the court are plaintiff’s third amended complaint (ECF No. 26) and request for evidence which the court construes as a motion to compel (ECF No. 25).

20 I. Third Amended Complaint 21 A. Statutory Screening of Prisoner Complaints 22 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).

24 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are “frivolous, malicious, or 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).

27 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”

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 Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).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

6 Franklin, 745 F.2d at 1227-28 (citations omitted).

7 “Federal Rule of Civil Procedure 8(a)(2) 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 Atl. Corp. v. Twombly, 550 10 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

11 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). 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.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

20 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).

1 B. Allegations 2 The third amended complaint1 appears to allege violations of plaintiff’s First and Eighth Amendment rights. ECF No. 26. Plaintiff alleges that he has been in two separate bus accidents while in the custody of the California Department of Corrections and Rehabilitation (CDCR) and that he has filed grievances related to those accidents and his subsequent medical care. Id. at 2.

6 In retaliation for filing those grievances, plaintiff has been subjected to “diesel therapy,” meaning that he is constantly being transferred to different prisons to prevent him from accessing the courts and to punish him for his grievances. Id. at 2, 4-5. He also alleges that after being transferred to Salinas Valley State Prison, his medical needs were ignored. Id. at 6-7.

10 C. Failure to State a Claim 11 Aside from the caption and two pages buried in the middle of the complaint (ECF No. 26 at 1, 15-16), plaintiff does not clearly identify any defendants against whom he seeks to proceed, and there are no allegations against the individuals listed in the caption or on the pages that appear to be lists of defendants. Though plaintiff refers to various individuals throughout the complaint, he fails to clearly identify any of them as defendants against whom he seeks to proceed. Moreover, the allegations he makes are vague and conclusory, fail to show any specific conduct by the individual defendants, and appear wholly unrelated to the claims in the second amended complaint. Plaintiff has failed to allege facts showing that any defendant deliberately denied, delayed, or interfered with treatment for a serious medical need. He also has not alleged any facts that would support his claim that he was transferred because of the grievances he filed.

21 D. Improper Joinder 22 The court notes that the third amended complaint is improper because it brings multiple, unrelated claims, against more than one defendant. If plaintiff chooses to amend the complaint, he is advised that he may only join multiple claims if they are all against a single defendant, Fed. After plaintiff submitted an unsigned original complaint, he was ordered to re-file a signed copy of the complaint. ECF No. 3. Plaintiff then submitted a first amended complaint that was also unsigned (ECF No. 4) before eventually filing the signed second amended complaint (ECF No. 11). Upon screening, the second amended complaint was found to not state any claims for relief and plaintiff was given an opportunity to file a third amended complaint. ECF No. 17.

1 R. Civ. P. 18(a), and he may only join defendants where the right to relief arises out of the same “transaction, occurrence, or series of transactions,” and “any question of law or fact common to all defendants will arise in the action,” Fed. R. Civ. P. 20(a)(2). In other words, joining more than one claim is only proper when it is against one defendant, and joining multiple defendants in one complaint is only proper when the claims against them are based on the same facts. Plaintiff must decide which related claims and defendants he wants to pursue in this action, and any unrelated claims involving different defendants must be brought in separate suits.

8 E. Leave to Amend 9 The third amended complaint does not state any cognizable claims for relief and plaintiff will be given a final opportunity amend the complaint. If plaintiff chooses to file a fourth amended complaint, he must demonstrate how the conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). There can be no liability under 42 15 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

17 Furthermore, “[v]ague and conclusory allegations of official participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted).

19 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make his amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint, the original and any prior complaints no longer serve any function in the case. Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.

1 Should plaintiff choose to amend the complaint, he is reminded that state a claim for deliberate indifference to his serious medical needs, he “must show a serious medical need by demonstrating that failure to treat a prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction of pain” and that “the defendant’s response to the need was deliberately indifferent.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation marks omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)).

7 “Indifference ‘may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.’” Id. (quoting McGuckin, 974 F.2d at 1059). However, “[m]ere indifference, negligence, or medical malpractice” will not support a claim of deliberate indifference. Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1082 (9th Cir. 2013) (internal quotation marks omitted) (quoting Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980)).

13 In order to state a claim for retaliation, plaintiff must allege facts showing that defendants took adverse action against him and that they were motivated to do so by plaintiff’s protected conduct. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005) (citation omitted). It is not enough to say that a defendant took adverse action against plaintiff because of his protected conduct. He must allege facts that support that conclusion (e.g., timing of adverse conduct in relation to protected conduct, statements of others regarding intent, etc.).

19 II. Motion for Evidence 20 Plaintiff has filed a motion in which he appears to request that the CDCR be ordered to provide him with audio/video surveillance system evidence. ECF No. 25. Because plaintiff has not yet stated a cognizable claim and no defendant has been served, discovery is premature and the motion to compel will be denied.

24 III. Plain Language Summary of this Order for a Pro Se Litigant 25 Your complaint will not be served because you have not clearly identified the defendants or the claims you are trying to make against them. You also appear to be trying to join together unrelated claims and defendants.

28 You will have one more change to amend your complaint to try to fix these problems. If | you choose to amend the complaint, you should use the form provided by the court and you must || clearly list the individuals you want to be defendants. You must also provide facts that show || exactly what each defendant did to violate your rights or to cause a violation of your rights. You || do not need to attach exhibits to your complaint and should instead focus on explaining to the || court what your claims are.

6 If you choose to file an amended complaint, it must include all claims you want to bring.

7 || Once an amended complaint is filed, the court will not look at any information in the original or | any prior amended complaints. Any claims and information not in the fourth amended | complaint will not be considered.

10 CONCLUSION 1] In accordance with the above, IT IS HEREBY ORDERED that: 12 1. Plaintiff's motion for evidence (ECF No. 25) is CONSTRUED as a motion to compel | and is DENIED.

14 2. Plaintiff's complaint fails to state a claim upon which relief may be granted, see 28 | U.S.C. § 1915A, and will not be served.

16 3. Within thirty days from the date of service of this order, plaintiff may file an amended || complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil || Procedure, and the Local Rules of Practice. The amended complaint must bear the docket || number assigned this case and must be labeled “Fourth Amended Complaint.” Failure to file an || amended complaint in accordance with this order will result in a recommendation that this action || be dismissed.

22 4. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint || form used in this district.

24 | DATED: October 9, 2024 ~ Cttt0 Lhar—e_ 25 ALLISONCLAIRE. %6 UNITED STATES MAGISTRATE JUDGE