(PC) Johnson v. Sisto et al, No. 2:2008cv01609 - Document 25 (E.D. Cal. 2010)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 3/24/2010 ORDERING that the 22 motion for leave to file a second amended cmplt is GRANTED; service is appropriate for dfts J. Freeman III, Sisto, Singh, Traquina , Cate, Greer, Gentry, Nuehring, Jones, Shockley, Fleishman, Petersen, Deur, Eck, Noriega and DeChant; the clerk to send pltf forms for service to be completed and returned w/in 30 days, along w/ the Notice of Submission; the 19 motion for an exten sion of time to serve a summons is DENIED; the 21 motion for an order directing USM to serve process is DENIED; and RECOMMENDING that all claims against dfts V.D. Brumfield, Anderson, Becerra, R.L. Bond, B. Burns, Camacho, Camaya, ComyRomero, R. C ordova, DeGorgis, Durffy, Elisara, T. Ellior, V. Fera, J.P. Fields, Francis, Freese, M. Grimm, Heath, M. Hogan, B. Johnson, Kharsa, S. Lee, Lemus, Liu, Madil, N. Marquez, Menjavar, M. Ross, Scotland, K. Sillivan, Tamayo, Weaver, G. Wong, and J. Zucker be dismissed w/out prejudice. Referred to Judge John A. Mendez; Objections to F&R due w/in 21 days. (Yin, K)
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(PC) Johnson v. Sisto et al Doc. 25 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 LACEDRIC W. JOHNSON 11 Plaintiff, 12 vs. 13 No. 08-cv-1609 JAM KJN P D.K. SISTO, et al. 14 FINDINGS AND RECOMMENDATIONS AND Defendants. 15 ORDER / 16 Plaintiff is a state prisoner proceeding without counsel and in forma pauperis with 17 an action filed pursuant to 42 U.S.C. § 1983. By order filed March 26, 2009, plaintiff's 18 complaint was dismissed with leave to file an amended complaint. (Dkt. No. 9.) Plaintiff filed 19 an amended complaint and followed it with a motion for leave to file a second amended 20 complaint. (Dkt. Nos. 13, 22.) The court will grant the motion and execute its duty to screen all 21 pro se prisoners’ complaints with respect to the second amended complaint.1 28 U.S.C. § 1915A. 22 23 24 25 26 1 As the court informed plaintiff in its order of March 26, 2009, an amended complaint supercedes the original complaint. See Order at 5 (Dkt No. 9). The same is true of a second amended complaint with respect to the complaint that preceded it. Therefore, in granting the motion for leave to file the second amended complaint, the court renders the first amended complaint ineffective. 1 Dockets.Justia.com 1 2 I. Screening Order The court is required to screen complaints brought by prisoners seeking relief 3 against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised 5 claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 6 granted, or that seek monetary relief from a defendant who is immune from such relief. 28 7 U.S.C. § 1915A(b)(1),(2). 8 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 10 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 11 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 12 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 13 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 14 Cir. 1989); Franklin, 745 F.2d at 1227. 15 When considering whether a complaint states a claim upon which relief can be 16 granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 17 (2007), and construe the complaint in the light most favorable to the plaintiff. See Scheuer v. 18 Rhodes, 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than 19 those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Still, to survive 20 dismissal for failure to state a claim, a pro se complaint must contain more than “naked 21 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 22 action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 23 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 24 statements do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Furthermore, a 25 claim upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 26 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 2 1 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 2 Iqbal, 129 S. Ct. at 1949. Attachments to a complaint are considered to be part of the complaint 3 for purposes of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard 4 Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). 5 The second amended complaint states some cognizable claims for relief pursuant 6 to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b). However, the complaint does not adequately 7 plead each claim alleged against every defendant. Rather, the court finds that if the allegations of 8 the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits 9 of this action only as to the following claims and defendants: 10 11 12 With respect to Claim I for use of excessive force, the complaint states a viable cause of action against defendant J. Freeman III. With respect to Claim II for unlawful conditions of confinement, the complaint 13 states a viable cause of action against defendants Sisto, Singh, Traquina, Cate, Greer, Gentry, 14 Nuehring, Jones, Shockley, Fleishman and Petersen. 15 With respect to Claim III for deliberate indifference to a serious medical need, the 16 complaint states a viable cause of action against defendants Deur, Eck, Noriega and DeChant. 17 With respect to Claim IV, the complaint does not state an independent cause of 18 action against any defendant. However, defendants to Claim II are apprised that to the extent 19 plaintiff has alleged mental or psychological suffering as a result of his placement on contraband 20 surveillance watch, that is an element of the cognizable claim for unconstitutional conditions of 21 confinement stated in Claim II. See Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993). 22 23 24 With respect to Claims V and VI, the complaint does not state a cause of action against any defendant. As the court stated in its initial screening order, the Eleventh Amendment 25 prohibits suits for damages against state officials in their official capacities. See Order at 9 (Dkt. 26 No. 9)(citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989)). Therefore, none of 3 1 plaintiff’s claims is viable as a claim for damages against any defendant sued in his or her official 2 capacity. 3 Plaintiff has also filed a motion for additional time in which to serve defendants 4 and a motion for an order directing the U.S. Marshal to serve defendants. (Dkt. Nos. 19, 21.) An 5 order regarding service of a pro se prisoner’s complaint follows the successful screening of the 6 complaint under 28 U.S.C. § 1915A and plaintiff’s submission of the appropriate service 7 documents. Such an order is therefore the prerogative of the court, not the plaintiff. Both of 8 plaintiff’s motions regarding service of his complaint will be denied. The court will order 9 service upon the sixteen above-named defendants after plaintiff complies with the instructions 10 for submitting service documents, set out in Paragraph 4 below. 11 II. 12 Findings and Recommendations The court finds that plaintiff has not alleged viable claims against the thirty-five 13 remaining defendants who are named in the second amended complaint but are not named in the 14 screening order above. Therefore the undersigned recommends that all claims against those 15 defendants, listed below, be dismissed without prejudice. 16 The court notes that plaintiff has now taken three opportunities to draft a pleading 17 that adequately states the factual basis of a cause of action against each defendant. Plaintiff 18 abided by the court’s order that he restrict the actual complaint within twenty-five pages, but he 19 ignored the court’s order that the page restriction also include exhibits. See Order at 4 (Dkt. No. 20 9). The court finds that this infraction should not result in dismissal, but plaintiff has now 21 exhausted the permissiveness for amending his complaint provided by Fed.R.Civ.P. 15(a). 22 Plaintiff has successfully pled some claims against some defendants, but he has failed to do so 23 against other defendants despite the court’s allowances. Therefore, while plaintiff has the right 24 to object to these findings and recommendations concerning his second amended complaint, 25 plaintiff is admonished that the court will not grant leave to file a third amended complaint, and 26 thus delay the progress of this case even further, without a showing of good cause. 4 1 In accordance with the above, IT IS HEREBY ORDERED that: 2 1. The motion for leave to file a second amended complaint (Dkt. No. 22) is 3 granted. 4 2. Service is appropriate for the following defendants: J. Freeman III, Sisto, 5 Singh, Traquina, Cate, Greer, Gentry, Nuehring, Jones, Shockley, Fleishman, Petersen, Deur, 6 Eck, Noriega and DeChant. 7 3. The Clerk of the Court shall send plaintiff sixteen USM-285 forms, one 8 summons, an instruction sheet and a copy of the second amended complaint filed February 22, 9 2010. 10 11 4. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the following documents to the court: 12 a. The completed Notice of Submission of Documents; 13 b. One completed summons; 14 c. One completed USM-285 form for each defendant listed in number 1 15 above; and 16 d. Seventeen copies of the endorsed amended complaint filed February 22, 17 2010. 18 5. Plaintiff need not attempt service on defendants and need not request waiver of 19 service. Upon receipt of the above-described documents, the court will direct the United States 20 Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 21 without payment of costs. 22 23 6. The motion for an extension of time in which to serve a summons (Dkt. No. 19) is denied. 24 25 7. The motion for an order directing the U.S. Marshal to serve process (Dkt. No. 21) is denied. 26 5 1 IT IS HEREBY RECOMMENDED that all claims against the following 2 defendants be dismissed without prejudice: V.D. Brumfield, Anderson, Becerra, R.L. Bond, B. 3 Burns, Camacho, Camaya, ComyRomero, R. Cordova, DeGorgis, Durffy, Elisara, T. Ellior, V. 4 Fera, J.P. Fields, Francis, Freese, M. Grimm, Heath, M. Hogan, B. Johnson, Kharsa, S. Lee, 5 Lemus, Liu, Madil, N. Marquez, Menjavar, M. Ross, Scotland, K. Sillivan, Tamayo, Weaver, G. 6 Wong, and J. Zucker. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 9 one days after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 12 shall be served and filed within twenty-one days after service of the objections. The parties are 13 advised that failure to file objections within the specified time may waive the right to appeal the 14 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 DATED: March 24, 2010 16 17 18 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 19 20 john1609.1amd.new 21 22 23 24 25 26 6 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, No. CIV vs. 13 NOTICE OF SUBMISSION 14 Defendants. OF DOCUMENTS 15 / 16 17 Plaintiff hereby submits the following documents in compliance with the court's order filed : 18 completed summons form 19 completed USM-285 forms 20 copies of the Amended Complaint 21 DATED: 22 23 Plaintiff 24 25 26
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