Jerry A. Burton v. Fred Haws et al
Filing
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MEMORANDUM AND ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Carla Woehrle. For reasons stated below, Plaintiff's Second Amended Complaint is dismissed with leave to amend. It is therefore ORDERED as follows: 1. The Second Amended Complaint is dismissed with leave to amend. 2. Within thirty (30) days of the date of this order Plaintiff may file a Third Amended Complaint correcting the defects discussed above and complying with the following requirements. (SEE ORDER FOR FURTHER DETAILS) (gr)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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JERRY A. BURTON,
Plaintiff,
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v.
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DUNCAN FALLON, et al.,
Defendants.
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No. CV 08-5834-GHK(CW)1
MEMORANDUM AND ORDER DISMISSING
SECOND AMENDED COMPLAINT
WITH LEAVE TO AMEND
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For reasons stated below, Plaintiff’s Second Amended Complaint is
dismissed with leave to amend.
BACKGROUND AND PROCEDURAL HISTORY
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The pro se plaintiff is a prisoner in state custody seeking to
proceed in forma pauperis on a civil rights action naming governmental
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Plaintiff has another action pending in this court, Burton v.
Yarborough, No. CV 04-7209-GW(CW). He first attempted to raise his
present claims in a second amended complaint filed in that action on
June 3, 2008. [CV 04-7209, docket no. 44.] The court dismissed with
leave to amend in a memorandum and order filed June 30, 2008, advising
Plaintiff that the claims in question should be brought in a separate
proceeding. [CV 04-7209, docket no. 42.] Plaintiff has done so in
the present case. This memorandum and order concerns only this case.
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defendants and addressing prison conditions.
His initial Complaint
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(docket no. 4) was received September 4, 2008, lodged September 5,
3
2008, and filed October 15, 2008, pursuant to the court’s Order re
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Leave to File Action Without Prepayment of Full Filing Fee (docket no.
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3).2
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memorandum and order filed August 19, 2009.
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Plaintiff’s First Amended Complaint was filed September 11, 2009
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(docket no. 8), and was superceded by his Second Amended Complaint
9
(“SAC”) filed October 12, 2010 (docket no. 11).3
The court dismissed the Complaint with leave to amend in a
[Docket no. 7.]
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STANDARD OF REVIEW
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Because plaintiff is a prisoner, seeking to proceed in forma
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pauperis, on a civil rights complaint naming governmental defendants
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and addressing prison conditions, his complaint is subject to review
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under provisions of the Prison Litigation Reform Act of 1995 (“PLRA”),
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Pub. L. No. 104-134, 110 Stat. 1321 (1996).
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The court shall dismiss such a complaint, at any time, if it is
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frivolous or malicious, fails to state a claim on which relief may be
18
granted, or seeks monetary relief from an immune defendant.
19
v. Smith, 203 F.3d 1122, 1126-27 and n.7 (9th Cir. 2000)(en banc); 28
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U.S.C. § 1915(e)(2)(B)(in forma pauperis complaints); 28 U.S.C.
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§ 1915A(b)(prisoner complaints against government defendants); 42
See 28 U.S.C. § 1915A(a).
See Lopez
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The Complaint named seventeen individual capacity defendants:
Haws, Henderson, Reaume, Cagalawan, Harris, Clemons, Cruz, Parker,
McGuinness, Fortson, Cromwell, Fallon, Wofford, Gonzalez, Teaney,
Nipper, and Foote.
3
The First Amended Complaint named eight individual capacity
defendants: Fallon, Fortson, Henderson, Harris, Foote, Reaume, Luu,
and Clemons. The SAC named these eight and a ninth, Defendant Fisher.
[SAC caption.] Plaintiff has thus effectively dismissed Defendants
Haws, Cagalawan, Cruz, Parker, McGuinness, Cromwell, Wofford,
Gonzalez, Teaney, and Nipper.
2
1
2
U.S.C. § 1997e(c)(complaints re: prison conditions).
PLRA review for failure to state a claim applies the same
3
standard applied in reviewing a motion to dismiss for failure to state
4
a claim under Fed. R. Civ. P. 12(b)(6).
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F.3d 1193, 1194 (9th Cir. 1998).
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for failure to state a claim tests the legal sufficiency of a claim
7
for relief.
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deciding such a motion, all material allegations of the complaint are
9
accepted as true, as well as all reasonable inferences to be drawn
See Barren v. Harrington, 152
A Rule 12(b)(6) motion to dismiss
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
10
from them.”
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‘lack of a cognizable legal theory’ or ‘the absence of sufficient
12
facts alleged under a cognizable legal theory.’”
13
Healthcare System, 534 F.3d 1116, 1121 (9th Cir. 2008)(quoting
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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
15
1990)).
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claim if it discloses a fact or defense that necessarily defeats the
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claim.
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(citing 2A Moore’s Federal Practice ¶ 12.08).
19
Id.
“In
“A Rule 12(b)(6) dismissal may be based on either a
Johnson v. Riverside
A complaint may also be dismissed for failure to state a
Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984)
Possible failure to state a claim is reviewed under the pleading
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standard of Fed. R. Civ. P. 8(a)(2), which requires a “short and plain
21
statement of the claim showing that the pleader is entitled to
22
relief.”
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173 L. Ed. 2d 868 (2009)(“Iqbal”).
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not require detailed factual allegations,” but does require more than
25
merely “labels and conclusions or a formulaic recitation of the
26
elements of a cause of action.”
27
internal quotation marks omitted).
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sufficient factual matter, accepted as true, to state a claim to
Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S. Ct. 1937,
The Rule 8 pleading standard “does
Iqbal, 556 U.S. at 678 (citations and
Instead, “a complaint must contain
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1
relief that is plausible on its face.”
2
quotation marks omitted).
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plaintiff pleads factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct
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alleged.”
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requirement, but does ask for more than mere possibility.
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Id.
Id. (citations and internal
“A claim has facial plausibility when the
This plausibility standard is not a probability
Id.
In Iqbal, the Supreme Court applied a two-pronged approach to
Id. at 678-81.
First,
8
reviewing possible failure to state a claim.
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the reviewing court may identify statements in a complaint that are
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actually conclusions, rather than factual allegations, and, as such,
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are not entitled to a presumption of truth.
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statements’ conclusory nature, rather than any fanciful or nonsensical
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nature, “that disentitles them to the presumption of truth.”
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681.
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pleaded factual allegations,” and determines whether these allegations
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and reasonable inferences from them plausibly support a claim for
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relief.
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principles in Supreme Court law on the Rule 8 pleading standard:
Id. at 678-79.
It is the
Id. at
Second, the court presumes the truth of any remaining “well-
Id. at 679-80.
The Ninth Circuit has found two common
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First, to be entitled to the presumption of truth,
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allegations in a complaint . . . may not simply recite the
21
elements of a cause of action, but must contain sufficient
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allegations of underlying facts to give fair notice and to
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enable the opposing party to defend itself effectively.
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Second, the factual allegations that are taken as true must
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plausibly suggest an entitlement to relief, such that it is
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not unfair to require the opposing party to be subjected to
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the expense of discovery and continued litigation.
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Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 80
4
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U.S.L.W. 3462 (U.S. Apr. 30, 2012)(No. 11-834); see also Hydrick v.
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Hunter, 669 F.3d 937, 940-41 (9th Cir. 2012)(on Iqbal and Starr).
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If the court finds that a complaint should be dismissed for
4
failure to state a claim, the court may dismiss with or without leave
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to amend.
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banc).
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can be corrected, especially if the plaintiff is pro se.
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31; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.
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1995).
Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000)(en
Leave to amend should be granted if it appears that defects
Id. at 1130-
If, however, after careful consideration, it is clear that a
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complaint cannot be cured by amendment, the court may dismiss without
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leave to amend.
Cato, 70 F.3d at 1107-11.
THE SECOND AMENDED COMPLAINT
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Although Plaintiff is now at Pelican Bay State Prison, the SAC
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concerns events that allegedly occurred when he was at California
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State Prison, Los Angeles County (“CSP-LAC”), in this district.
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noted above, the SAC names nine state prison officers as individual
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capacity defendants: (1) Chief Deputy Warden Fallon, (2) Captain
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Fortson, (3) Captain Henderson, (4) Lieutenant Harris, (5) Lieutenant
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Foote, (6) Sergeant Reaume, (7) Officer Luu, (8) Officer Clemons, and
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(9) Chairperson Fischer.
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declaratory and injunctive relief and monetary damages.
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27.]
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COA 1:
First Amendment - Access to Courts;
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COA 2:
First Amendment - Right to Association;
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COA 3:
First Amendment - Right to Association and Speech;
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COA 4:
First Amendment - Retaliation;
[Caption, SAC p.1.]4
As
Plaintiff seeks
[SAC pp. 26-
He sets forth twelve “causes of action” (“COAs”) as follows:
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Plaintiff lists all nine in the caption but omits Defendant
Foote in listing defendants in the body of the SAC. [SAC ¶¶ 3-10.]
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COA 5:
Eighth Amendment - Cruel and Unusual Punishment;
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COA 6:
Conspiracy;
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COA 7:
Fourteenth Amendment - State Created Liberty Interest;
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COA 8:
Federal Due Process;
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COA 9:
State Due Process;
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COA 10:
Violation of Mandatory Duties - State Law;
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COA 11:
Failure to Lawfully Administer, Train, and Supervise;
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COA 12:
Due process.
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[SAC pp. 19-25.]
COAs 9 and 10 assert state law claims; the other
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COAs assert federal civil rights claims under 42 U.S.C. § 1983 (and,
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for COA 6, 42 U.S.C. § 1985).
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Plaintiff summarizes the basis for his complaint as follows:
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This action arises from the defendants’ practices, acts
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and/or policies which have caused Plaintiff to be wrongly
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placed and retained in the SHU [Security Housing Unit] on
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the basis of alleged prison gang association/member[ship].
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Defendants have wrongly placed and retained Plaintiff in the
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SHU:
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a) without due process of law;
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b) when Plaintiff is not a prison gang
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associate/member;
c) on [the] basis of Plaintiff’s innocent association
with other inmates;
d) in retaliation for Plaintiff’s legitimate speech,
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association and past SHU term disciplinaries [sic] he’s
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completed successfully;
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e) Plaintiff was not given notice and an opportunity to
present his views before being placed in segregation;
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f) in spite of the fact that Plaintiff’s speech and
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association with other inmates did not violate any law or
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prison rule;
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g) when Plaintiff has not been charged [with] or found
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guilty of violating Title 15, California Code of Regulations
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(CCR) section 3023 (the prison regulation prohibiting gang
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activity) or any other regulation;
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h) on the basis of invalid/void, false and expired/
unreliable information;
i) for an extended period of time in conditions that
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adversely impact Plaintiff’s physical and psychological
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well-being;
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j) pursuant to Defendants’ customs, official policies
and underground regulations.
[SAC pp. 3-4.]
This is followed by a lengthy section captioned “Facts,” in
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which, however, Plaintiff fails to give a clear and concise factual
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account of what he alleges actually happened in connection with his
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various claims.
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actual factual allegations, unsupported inferences, and legal
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conclusions.
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pages in the SAC as submitted to the court: page 5 (part of ¶ 18 and
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all of ¶¶ 19-26) and page 16 (part of ¶ 53 and all of ¶¶ 54-59).
Instead, he jumps around chronologically, and mixes
[SAC pp. 4-18.]
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25
The “Facts” section is also missing two
DISMISSAL UNDER RULE 8
The SAC does not provide the “short and plain statement of the
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claim showing that the pleader is entitled to relief” required under
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Rule 8 and the PLRA.
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conclusions” or “formulaic recitation” in the form of Plaintiff’s
Instead, much of the SAC consists of “labels and
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causes of action.
Iqbal, 556 U.S. at 678.
Several of these “causes
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of action” do not state separate legal claims (for violations of
3
federal or state law), but, instead, assert theories for why certain
4
defendants are liable under the claims asserted under other causes of
5
action.
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supervise).]
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e.g., Plaintiff claims that Defendants denied him due process of law
8
under the Fourteenth Amendment when they caused him to be assigned to
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the SHU indefinitely as a gang member after an investigation that was
[See, e.g., COAs 6 (conspiracy) and 11 (failure to
Some causes of action appear to be duplications.
Thus,
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procedurally flawed and came to an erroneous conclusion.
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clear why Plaintiff appears to have spread this federal due process
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claim across three COAs: 7, 8, and 12.
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Plaintiff’s Eighth Amendment claim in COA 5 basically duplicates his
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Fourteenth Amendment claim (by asserting that indefinite placement in
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the SHU after he was erroneously found to be a gang member is cruel
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and unusual punishment), or whether Plaintiff is asserting a separate
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Eighth Amendment claim (that indefinite placement in the SHU for being
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a gang member is cruel and unusual punishment even if the prisoner
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actually is a gang member).
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present separate First Amendment claims, or are simply part of COA 4
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(that is, as a claim that Defendants violated Plaintiff’s First
22
Amendment rights by retaliating against him for exercising his rights
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to freedom of speech and association).
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It is not
It is also not clear whether
It is also not clear whether COAs 2 and 3
Plaintiff also has not clearly articulated his claims under the
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state constitution and state law in COAs 9 and 10, and he has not
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stated that he satisfied the requirements of the California Tort
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1
Claims Act, Cal. Gov’t Code sections 810 et seq.5
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seeks to sue a public employee under California law must file a timely
3
written claim with the proper officer or governmental body before
4
bringing suit, and must plead that he or she has done so in his or her
5
complaint.
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in a federal civil rights suit may be dismissed if the complaint fails
7
to allege compliance with California Tort Claims Act procedures.
8
Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627 (9th Cir.
9
1988); see also, e.g., White v. City of Bakersfield, No. 1:11-CV-1692,
Cal. Gov’t Code §§ 905 et seq.
A plaintiff who
Pendant state law claims
See
10
2012 WL 273088, at *4 (E.D. Cal. Jan. 30 2012)(citing Karim-Panahi,
11
id.)); Butler v. Los Angeles County, 617 F. Supp. 2d 994, 1001 (C.D.
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Cal. 2008).
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Furthermore, in the SAC, Plaintiff has not set forth factual
14
allegations in such a way as to (1) allow the court to understand with
15
reasonable clarity what allegedly happened; (2) support the elements
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of Plaintiff’s specific legal claims; and (3) show how specific
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defendants may be liable under specific legal claims.
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problem in Plaintiff’s statement of facts is that he has not clearly
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distinguished the events surrounding (a) his brief initial placement
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in administrative segregation during the investigation of his possible
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gang association, and (b) his indefinite placement in segregated
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housing as a result of that investigation.6
One particular
This is important because
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27
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5
The requirements of the California Tort Claims Act do not
apply to Plaintiff’s claims under federal law, and they are separate
from the requirement, under federal law, that a prisoner exhaust
administrative remedies before filing suit.
6
As to the denial of Plaintiff’s administrative appeals, it is
not clear whether he is simply arguing that the denials were in error,
or that the denials were, themselves, further due process violations.
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1
the Supreme Court has held that a brief period of administrative
2
segregation (e.g., thirty days) does not implicate a liberty interest
3
so as to support a due process claim.
4
484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995); see also Richardson v.
5
Runnels, 594 F.3d 666, 672 (9th Cir. 2010)(post-Sandin case finding
6
that administrative segregation for some fifteen days did not concern
7
a due process liberty interest).
Sandin v. Conner, 515 U.S. 472,
8
Under Sandin, whether a due process liberty interest exists
9
depends on whether the change in the prisoner’s confinement imposed an
10
atypical and significant hardship in relation to the ordinary
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incidents of prison life.
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may be able to assert a state-created liberty interest and a due
13
process claim based on his indefinite placement in segregated housing
14
(after having been found to be a gang member) if he can show that such
15
indefinite placement does constitute such an atypical and significant
16
hardship.7
17
125 S. Ct. 2384, 162 L. Ed. 2d 174 (2005)(post-Sandin Supreme Court
18
case on liberty interest in not being assigned to “super-max”
19
facility); Jackson v. Carey, 353 F.3d 750, 755-57 (9th Cir. 2003)
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(remanding for factual consideration as to whether plaintiff could
21
show whether conditions in his disciplinary segregation amounted to
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atypical and significant hardship under Sandin).
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Sandin, 515 U.S. at 484.
Here, Plaintiff
See, e.g., Wilkinson v. Austin, 545 U.S. 209, 223-24, 228,
Finally, Plaintiff’s claims for injunctive relief appear to be
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26
27
28
7
Plaintiff does not have a liberty interest directly under the
due process clause in remaining in general population. See Wolff v.
McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974).
Therefore, any due process claim challenging his placement in the SHU
must depend on a liberty interest created by state law. The Supreme
Court redefined the criteria for finding such state-created liberty
interests in Sandin.
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1
moot in light of his transfer to another prison.
2
Moore, 948 F.2d 517, 519 (9th Cir. 1991)(per curiam)(prisoner’s claims
3
for injunctive relief regarding prison conditions moot in light of
4
transfer); Smith v. Marshall, No. CV 07–0864–JHN (PJW), 2011 WL
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2563289, at *5 (C.D. Cal. May 10, 2011)(citing Johnson v. Moore).
6
Because of Plaintiff’s transfer to another institution, none of the
7
named defendants would have the power to effect the injunctive relief
8
Plaintiff seeks, and none of the officials in his present institution
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who might have that power are defendants in this action.
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See Johnson v.
LEAVE TO AMEND
Accordingly, the SAC is subject to dismissal, but Plaintiff may
12
be able successfully to amend as to at least some of his claims and
13
Defendants.
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which he was placed in administrative segregation while he was
15
investigated as a gang member, then found to be a gang member and
16
placed indefinitely in segregated housing.
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state several claims under 42 U.S.C. § 1983 for violations of his
18
federal constitutional rights.8
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state a Fourteenth Amendment due process claim if he can plead that
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indefinite segregation involves a state-created liberty interest, and
21
that he was denied this interest without receiving all the process
22
that was due him.
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retaliation claim if he can allege facts showing that Defendants
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investigated him and imposed segregation with the intention of
Plaintiff’s claims are all related to the process by
He may be able to amend to
For example, (1) he may be able to
(2) He may be able to state a First Amendment
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26
8
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Plaintiff’s allegations do not support a separate claim under
42 U.S.C. § 1985, which requires a showing of racial (or some other
limited class-based) discrimination. See Griffin v. Breckenridge, 403
U.S. 88, 102-03, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971).
11
1
retaliating against him for having exercised his First Amendment
2
rights.
3
claim if he can allege facts supporting a claim that he was denied
4
access to the courts in regard to filing a criminal appeal, habeas
5
petition, or civil rights action, and that this denial of access
6
resulted in an actual injury.
7
116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996); Madrid v. Gomez, 190 F.3d
8
990, 995-96 (9th Cir. 1999).
9
court claims in this court’s first memorandum and order, cited
10
11
(3) He may be able to state a First Amendment access to court
See Lewis v. Casey, 518 U.S. 343, 356,
[See also the discussion of access to
above.]9
In an amended complaint, Plaintiff must meet the pleading and
12
substantive requirements set forth in Ashcroft v. Iqbal, as discussed
13
above.
14
sufficient to support his legal claims, and sufficient to connect
15
individual named defendants to specific claims.
16
allegations must show that each defendant, including any supervisors,
17
caused a deprivation through the defendant’s own actions.
18
U.S. at 676.
19
civil rights violation, including, for example, any intent
20
requirement, vary depending on the constitutional or other legal
21
provision involved.
22
requirement for a particular violation is the same whether the
23
defendant is a supervisor or a subordinate.
24
F.3d at 1206-07.
25
26
That is, Plaintiff must set forth actual factual allegations
Plaintiff’s
Iqbal, 556
The specific factors necessary to establish a federal
See Iqbal, 556 U.S. at 676.
The intent
Id.; see also Starr, 652
Finally, Petitioner is, once again, advised that, if he does
amend his complaint, a defendant may move to dismiss for failure to
27
9
28
If Plaintiff includes other claims in an amended complaint, he
must show how he can overcome the defects discussed above.
12
1
exhaust administrative remedies, under 42 U.S.C. § 1997e(a).10
2
ORDERS:
3
It is therefore ORDERED as follows:
4
1.
5
The Second Amended Complaint is dismissed with leave to
amend.
6
2.
Within thirty (30) days of the date of this order Plaintiff
7
may file a Third Amended Complaint correcting the defects discussed
8
above and complying with the following requirements:
9
(a)
10
11
“CV 08-5834-GHK(CW).”
(b)
12
13
The “Third Amended Complaint” must bear the present case number
It must be complete in itself and may not incorporate by
reference any part of any prior complaint.
(c)
Plaintiff may not use “et al.” in the caption, but must name each
14
defendant against whom claims are stated in the Third Amended
15
Complaint.
16
defendants are correctly listed on the docket.)
17
18
(d)
(The clerk uses the caption to make sure that
Plaintiff may not add new parties without the court’s permission.
3.
If Plaintiff files an amended complaint, the court will
19
issue further orders, as appropriate and as soon as possible; if not,
20
the magistrate judge will recommend that this action be dismissed,
21
22
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24
25
26
27
28
10
Compliance with this exhaustion requirement is mandatory.
Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 152 L. Ed. 2d 12
(2002); Booth v. Churner, 532 U.S. 731, 739-40 & n. 5, 121 S. Ct.
1819, 149 L. Ed. 2d 958 (2001). A prisoner challenging conditions of
confinement must exhaust available administrative remedies before
filing suit even if it would futile to do so. Booth, 532 U.S. at 74041. Under § 1997e(a), an action must be dismissed unless the prisoner
exhausted administrative remedies before filing suit. McKinney v.
Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). Such failure to exhaust
is an affirmative defense, which may be raised in an “unenumerated”
motion to dismiss under Fed. R. Civ. P. Rule 12(b). Wyatt v. Terhune,
315 F.3d 1108, 1117-1119 and n.9 (9th Cir. 2003).
13
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without prejudice, for failure to prosecute and/or failure to comply
2
with court orders, as well as for the reasons stated above.
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4
DATED:
May 16, 2012
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CARLA M. WOEHRLE
United States Magistrate Judge
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