(PC)Grant v. Lupeni et al, No. 2:2021cv01241 - Document 7 (E.D. Cal. 2021)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 7/28/2021 ORDERING Plaintiff must either file an Amended Complaint or advise the court he wishes to stand by his current complaint within 60 days from the servi ce of this order; ORDERING Clerk to send Plaintiff a complaint form and assign a district judge to this action; and RECOMMENDING 2 Motion for Preliminary Injunction and Motion for TRO be denied without prejudice. Assigned and referred to Judge Kimberly J. Mueller. Objections due within 14 days of the service of the findings and recommendations. (Henshaw, R)
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(PC)Grant v. Lupeni et al Doc. 7 Case 2:21-cv-01241-KJM-JDP Document 7 Filed 07/29/21 Page 1 of 4 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 RUSSEL S. GRANT, 10 11 v. ORDER THAT THE CLERK OF COURT ASSIGN A DISTRICT JUDGE TO THIS CASE 12 LUPENI, et al., SCREENING ORDER THAT PLAINTIFF: 13 Plaintiff, Case No. 2:21-cv-01241-JDP (PC) Defendants. (1) FILE AN AMENDED COMPLAINT; OR 14 (2) NOTIFY THE COURT THAT HE WISHES TO STAND BY HIS COMPLAINT, SUBJECT TO A RECOMMENDATION THAT THIS ACTION BE DISMISSED 15 16 17 18 19 20 21 22 23 24 ECF No. 1 SIXTY-DAY DEADLINE FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER BE DENIED ECF No. 2 FOURTEEN-DAY DEADLINE TO FILE OBJECTIONS 25 26 Plaintiff alleges various and unrelated violations of his rights by fifty-seven defendants. 27 His complaint, as articulated, cannot proceed past screening. I will give him a chance to amend 28 his complaint before I recommend that this action be dismissed. I will also recommend that 1 Dockets.Justia.com Case 2:21-cv-01241-KJM-JDP Document 7 Filed 07/29/21 Page 2 of 4 1 plaintiff’s motion for preliminary injunction and temporary restraining order be denied without 2 prejudice. 3 4 Screening and Pleading Requirements A federal court must screen a prisoner’s complaint that seeks relief against a governmental 5 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 6 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 7 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 8 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 9 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 10 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 11 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 12 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 13 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 14 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 15 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 16 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 17 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 18 n.2 (9th Cir. 2006) (en banc) (citations omitted). 19 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 20 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 21 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 22 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 23 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 24 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 25 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 26 27 28 2 Case 2:21-cv-01241-KJM-JDP Document 7 Filed 07/29/21 Page 3 of 4 Analysis 1 2 Plaintiff brings this action against fifty-seven different officers at the Auburn County Jail 3 for at least three unrelated violations of his rights. First, he alleges that, in July 2019, he turned 4 the wrong direction while being escorted from his cell and was subsequently beaten by “countless 5 guards.” ECF No. 1 at 12. Only one of the named defendants, Sergeant Shafer, is alleged to have 6 participated in this excessive force incident. Id. Second, plaintiff alleges that, in October 2019, 7 defendants used a “no-touch torture” device that conjures “an illusory human ghost figure” that 8 can give a person the impression they are being touched. Id. at 14. He claims that defendants 9 used this device to poke him and flick his genital area repeatedly. Id. The “no-touch torture” 10 allegedly continued for months. Id. at 17. Third, he claims that, on a separate day in October 11 2019, defendants tampered with his food tray and caused him to consume an unknown substance 12 that made his skin burn. Id. at 15. 13 The foregoing claims are not related to each other and cannot proceed jointly in this 14 action. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims against 15 different defendants belong in different suits . . . .”). Additionally, the complaint does not comply 16 with Rule 8 of the Federal Rules of Civil Procedure, since it does not put each defendant on 17 notice as to how they are alleged to have violated plaintiff’s rights. Plaintiff describes how his 18 rights were violated, but never specifies how each of the fifty-plus defendants was involved. 19 Plaintiff may either stand by his complaint or file an amended complaint. If he stands by 20 his complaint, I will recommend dismissal of this action. If he files an amended complaint, the 21 amended complaint will supersede the current complaint. See Lacey v. Maricopa County, 693 F. 22 3d 896, 907 n.1 (9th Cir. 2012) (en banc). This means that the amended complaint will need to be 23 complete on its face without reference to the prior pleading. See E.D. Cal. Local Rule 220. Once 24 an amended complaint is filed, the current complaint no longer serves any function. Therefore, in 25 an amended complaint, as in an original complaint, plaintiff will need to assert each claim and 26 allege each defendant’s involvement in sufficient detail. The amended complaint should be titled 27 “Amended Complaint” and refer to the appropriate case number. 28 As noted above, plaintiff has also filed a motion for preliminary injunction and temporary 3 Case 2:21-cv-01241-KJM-JDP Document 7 Filed 07/29/21 Page 4 of 4 1 restraining order. ECF No. 2. In this motion he requests that an injunction and restraining order 2 be entered directing defendants to stop using “no-touch torture” against him. In light of the 3 deficiencies in plaintiff’s complaint described above, I cannot conclude that he is likely to 4 succeed on the merits. I recommend that the motion be denied without prejudice. 5 Accordingly, it is ORDERED that: 6 1. Within sixty days from the service of this order, plaintiff must either file an 7 Amended Complaint or advise the court he wishes stand by his current complaint. 8 2. Failure to comply with this order may result in the dismissal of this action. 9 3. The Clerk of Court is directed to send plaintiff a complaint form and to assign a district 10 judge to this action. 11 Further, it is RECOMMENDED that plaintiff’s motion for preliminary injunction and 12 temporary restraining order, ECF No. 2, be denied without prejudice. 13 I submit these findings and recommendations to the district judge under 28 U.S.C. 14 § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 15 Eastern District of California. Within 14 days of the service of the findings and 16 recommendations, plaintiff may file written objections to the findings and recommendations with 17 the court and serve a copy on all parties. That document should be captioned “Objections to 18 Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 19 and recommendations under 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the 20 specified time may result in the waiver of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 21 834, 839 (9th Cir. 2014). 22 23 IT IS SO ORDERED. 24 Dated: 25 26 July 28, 2021 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 27 28 4
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