(PC) Humes v. Green et al, No. 2:2017cv02610 - Document 26 (E.D. Cal. 2019)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/18/2019 ORDERING Clerk of Court to randomly assign a U.S. District Judge to this action and RECOMMENDING 21 Amended Prisoner Civil Rights Complaint be dismissed and the Clerk be directed to close the case. Assigned and referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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(PC) Humes v. Green et al Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JON HUMES, 12 13 14 No. 2:17-cv-2610-EFB P Plaintiff, v. MARY GREEN, et al., 15 ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a county jail inmate proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. After a dismissal pursuant to 28 U.S.C. § 1915A, he has filed an amended 19 complaint. 20 Federal courts must engage in a preliminary screening of cases in which prisoners seek 21 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 22 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 23 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 24 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 25 relief.” Id. § 1915A(b). 26 Prior to the issuing its initial screening order, plaintiff filed a total of four complaints. 27 ECF Nos. 1, 14, 16, 18. Those complaints named a combination of Mary Green, Placer County, 28 and/or the State of California as defendants. See id. The first complaint asserted a defamation 1 Dockets.Justia.com 1 claim based on the Placer County District Attorney’s Office’s alleged preparation of a false report 2 identifying plaintiff as a sex offender. ECF No. 1 at 3. Plaintiff’s subsequent complaints largely 3 echoed those allegations. ECF Nos. 14, 16, 18. They also alleged that plaintiff’s daughter had 4 made false claims against him and that he had been denied his right to due process. ECF No. 14 5 at 3; ECF No. 16 at 4. In dismissing all four of plaintiff’s complaints, the court informed plaintiff 6 of the legal standards governing his intended claims for relief and explained why his allegations 7 could not survive screening pursuant to those standards. ECF No. 19 at 3-4. 8 9 In the fifth complaint, now before the court for screening (ECF No. 21), plaintiff asserts an excessive force claim and an Americans with Disabilities Act claim against two previously 10 unnamed defendants. The amended complaint does not reference the claims asserted in the four 11 prior complaints, and consequently, fails to cure the defects in those claims which were 12 previously addressed by the court. Instead, the fifth complaint alleges only new, unrelated 13 claims. Neither the new defendants nor the new claims may be properly joined in this action. 1 14 See Fed. R. Civ. P. 18(a), 20(a)(2). If plaintiff wishes to pursue unrelated claims against 15 additional defendants, he must pursue them in a separate action. See George v. Smith, 507 F.3d 16 605, 607 (9th Cir. 2007). 17 The court granted plaintiff leave to amend for the purpose of curing the defects in his 18 original claims. ECF No. 19 at 4. Notably, the court warned plaintiff that in any amended 19 complaint, he could “not change the nature of this suit by alleging new, unrelated claims. See 20 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).” Id. at 4. Plaintiff has both failed to comply 21 with the court’s screening order and to cure the defects in his original claims for relief. 22 ///// 23 24 25 26 27 28 1 “The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim . . . may join, [] as independent or as alternate claims, as many claims . . . as the party has against an opposing party.’ Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 2 1 Therefore, this action should be dismissed without further leave to amend. See Lopez v. Smith, 2 203 F.3d 1122, 1129 (9th Cir. 2000) (“Under Ninth Circuit case law, district courts are only 3 required to grant leave to amend if a complaint can possibly be saved. Courts are not required to 4 grant leave to amend if a complaint lacks merit entirely.”); see also Doe v. United States, 58 F.3d 5 494, 497 (9th Cir. 1995) (“[A] district court should grant leave to amend even if no request to 6 amend the pleading was made, unless it determines that the pleading could not be cured by the 7 allegation of other facts.”). 8 9 10 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a United States District Judge to this action. Further, IT IS HEREBY RECOMMENDED that the amended complaint (ECF No. 21) be 11 dismissed for failure to comply with the court’s order and for failure to state a claim upon which 12 relief may be granted, and the Clerk be directed to close the case. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 18 within the specified time may waive the right to appeal the District Court’s order. Turner v. 19 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 DATED: April 18, 2019. 21 22 23 24 25 26 27 28 3

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