(PC) Johnson v. Unknown, No. 2:2021cv01450 - Document 8 (E.D. Cal. 2021)
Court Description: ORDER signed by Magistrate Judge Edmund F. Brennan on 11/08/21 VACATING 6 Findings and Recommendations and GRANTING 7 Motion to Proceed IFP. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in accordance with the notice to the California Department of Corrections and Rehabilitation filed concurrently herewith. Plaintiffs complaint 1 is dismissed with leave to amend within 30 daysfrom the date of service of this order. (Plummer, M)
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(PC) Johnson v. Unknown Doc. 8 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ORLANDO JOHNSON, 12 Plaintiff, 13 14 No. 2:21-cv-1450-KJM-EFB P v. ORDER UNKNOWN, 15 Defendant. 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 18 U.S.C. § 1983. In addition to filing a complaint (ECF No. 1), he has filed an application to 19 proceed in forma pauperis (ECF No. 7).1 Application to Proceed in Forma Pauperis 20 The court has reviewed plaintiff’s application and finds that it makes the showing required 21 22 by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency 23 having custody of plaintiff to collect and forward the appropriate monthly payments for the filing 24 fee as set forth in 28 U.S.C. § 1915(b)(1) and (2). 25 ///// 26 27 28 1 Accordingly, the September 23, 2021 findings and recommendations (ECF No. 6) issued after plaintiff failed to timely pay the filing fee or seek leave to proceed in forma pauperis in accordance with the court’s August 16, 2021 order are vacated. 1 Dockets.Justia.com 1 Screening Standards 2 Federal courts must engage in a preliminary screening of cases in which prisoners seek 3 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 5 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 6 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 7 relief.” Id. § 1915A(b). 8 9 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 10 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 11 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 12 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 13 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 14 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 15 U.S. 662, 679 (2009). 16 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 17 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 18 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 19 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 20 678. 21 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 22 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 23 content that allows the court to draw the reasonable inference that the defendant is liable for the 24 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 25 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 26 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 27 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 28 ///// 2 1 Screening Order 2 Plaintiff’s complaint is devoid of factual allegations and cannot survive screening. It 3 makes the bald claim that “Doe” defendants One through Four violated plaintiff’s Eighth 4 Amendment rights when they “failed to provide treatment, delayed treatment, made medical 5 decisions based on non-medical factors, and ignored obvious conditions even though plaintiff has 6 serious medical conditions.” ECF No. 1 at 3. It neither identifies a serious medical need nor 7 specifies how any defendant responded to that need with deliberate indifference. The complaint 8 also fails to specify how plaintiff was harmed or why he is due any form of relief. Plaintiff’s 9 request for relief sheds no light on the matter, cryptically listing, “Injunctive[,] Compensatory/ 10 Punitive” under the “Request for Relief” heading. Id. at 6. For the following reasons, the 11 complaint is dismissed with leave to amend. 12 First, the use “Doe” defendants is generally disfavored in the Ninth Circuit. Gillespie v. 13 Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Unknown persons cannot be served with process 14 until they are identified by their real names and the court will not investigate the names and 15 identities of unnamed defendants. 16 Second, plaintiff has not pleaded sufficient facts to state a proper claim for relief. 17 Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice 18 and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 19 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity 20 overt acts which defendants engaged in that support plaintiff’s claim. Id. To succeed on an 21 Eighth Amendment claim predicated on the denial of medical care, a plaintiff must establish that 22 he had a serious medical need and that the defendant’s response to that need was deliberately 23 indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also Estelle v. Gamble, 429 24 U.S. 97, 106 (1976). 25 Last, plaintiff’s request for relief needs to be more specific. Rule 8(a)(3) requires a 26 complaint to contain a demand for judgment for the relief sought. In any amended complaint, 27 plaintiff must include a request for relief, such as monetary damages or specific injunctive relief. 28 ///// 3 1 Leave to Amend 2 Plaintiff is cautioned that any amended complaint must identify as a defendant only 3 persons who personally participated in a substantial way in depriving him of his constitutional 4 rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 5 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 6 perform an act he is legally required to do that causes the alleged deprivation). Plaintiff may also 7 include any allegations based on state law that are so closely related to his federal allegations that 8 “they form the same case or controversy.” See 28 U.S.C. § 1367(a). 9 10 The amended complaint must also contain a caption including the names of all defendants. Fed. R. Civ. P. 10(a). 11 Plaintiff may not change the nature of this suit by alleging new, unrelated claims. See 12 George, 507 F.3d at 607. Nor, as mentioned above, may he bring unrelated claims against 13 multiple defendants. Id. 14 Any amended complaint must be written or typed so that it so that it is complete in itself 15 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 16 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 17 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 18 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 19 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 20 1967)). 21 Any amended complaint should be as concise as possible in fulfilling the above 22 requirements. Fed. R. Civ. P. 8(a). Plaintiff should avoid the inclusion of procedural or factual 23 background which has no bearing on his legal claims. He should also take pains to ensure that his 24 amended complaint is as legible as possible. This refers not only to penmanship, but also spacing 25 and organization. Plaintiff should carefully consider whether each of the defendants he names 26 actually had involvement in the constitutional violations he alleges. A “scattershot” approach in 27 which plaintiff names dozens of defendants will not be looked upon favorably by the court. 28 ///// 4 1 2 Conclusion Accordingly, it is ORDERED that: 3 1. The September 23, 2021 findings and recommendations (ECF No. 6) are vacated; 4 2. Plaintiff’s application to proceed in forma pauperis (ECF No. 7) is granted; 5 3. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected 6 in accordance with the notice to the California Department of Corrections and 7 Rehabilitation filed concurrently herewith; 8 9 10 11 12 4. Plaintiff’s complaint (ECF No. 1) is dismissed with leave to amend within 30 days from the date of service of this order; and 5. Failure to comply with any part of this this order may result in dismissal of this action. DATED: November 8, 2021. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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