(PC) White v. Pfeiffer

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 BOBBY WHITE, 1:19-cv-01786-NONE-GSA-PC

12 Plaintiff, ORDER DISMISSING COMPLAINT FOR

FAILURE TO STATE A CLAIM, WITH

13 vs. LEAVE TO AMEND

(ECF No. 1.)

14 PFEIFFER, et al.,

THIRTY-DAY DEADLINE TO FILE FIRST

15 Defendants. AMENDED COMPLAINT NOT

EXCEEDING 25 PAGES

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17 I. BACKGROUND

18 Bobby White (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

19 with this civil rights action pursuant to 42 U.S.C. § 1983. On December 23, 2019, Plaintiff filed

20 the Complaint commencing this action. (ECF No. 1.)

21 Plaintiff’s Complaint is now before the court for screening. 28 U.S.C. § 1915.

22 II. SCREENING REQUIREMENT

23 The court is required to screen complaints brought by prisoners seeking relief against a

24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

25 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

26 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

27 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

28 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

1 dismiss the case at any time if the court determines that the action or appeal fails to state a claim

2 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

3 A complaint is required to contain “a short and plain statement of the claim showing that

4 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

5 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

6 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

7 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken

8 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,

9 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state

10 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim

11 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,

12 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal

13 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this

14 plausibility standard. Id.

15 III. SUMMARY OF COMPLAINT

16 Plaintiff is presently incarcerated at Salinas Valley State Prison in Soledad, California, in

17 the custody of the California Department of Corrections and Rehabilitation (CDCR). The events

18 at issue in the Complaint allegedly took place at Kern Valley State Prison (KVSP) in Delano,

19 California. Plaintiff names as defendants Christian Pfeiffer (Warden), Sergeant Badger (Facility

20 C EOP Program), Connie Gibson (Director of Adult Operations, CDCR), Doe #1 (Facility C

21 Captain), Does #2 and 3 (Facility C, Bldg. 7 Correctional Officers), Doe #4 (Facility C, Bldg. 7

22 Control Tower Officer), Doe #5 (Facility C, I&E, Escorting Officer), Doe #6 (Facility C, EOP

23 Program Psychologist Supervisor), Doe #7 (Facility C Correctional Lieutenant), and Does #8 and

24 9 (Correctional Counselors II, KVSP) (collectively, “Defendants”).

25 Plaintiff’s allegations follow: On or about October 12, 2018, when releasing inmates for

26 medications in C-Section (EOP1 Section) of Housing Building #7, the floor officers yelled at the

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1 Enhanced Outpatient Program, a high level outpatient psychiatric care program offered at CDCR.

1 Control Tower Officer to just release everyone for medication. Plaintiff exited his cell to get in

2 line for medication when two inmates (cellmates) came out of their cell and started yelling, “Two

3 Five (25), Duce-Five.” (ECF No. 1 at 11 ¶ 10.) Even though staff heard this they did nothing,

4 even knowing that: (1) these two inmates were not EOP; and, (2) were part of a violent CDCR

5 STG-II prison gang well-known and documented by CDCR Officials. The two inmates yelled

6 “Two Five” again, approached Plaintiff and pulled out a stabbing weapon. (Id.)

7 The two STG-II inmates started chasing Plaintiff around the section while staff stood

8 around enjoying the assault. Plaintiff was assaulted and stabbed, and only then did floor staff

9 and the Control Tower hit the alarm and respond. Even though staff observed and witnessed the

10 assault and stabbing, and Plaintiff was already prone-down, an escorting responding officer

11 pepper sprayed Plaintiff.

12 Defendants (Big 7 officers and escorting officer) laughed at Plaintiff for running, telling

13 Plaintiff he should have fought the “Two-Fivers” so they could bet on the fight. Plaintiff was

14 transported to Kern Medical due to the stab wound in his left paraspinal thoracic region. Plaintiff

15 was returned to Building #7 and had to suffer continual clowning around by Defendants.

16 Defendants failed to protect Plaintiff knowing it was common knowledge and

17 documented fact that STG-II prison gangs, especially “Two-Five” members, are violent and

18 assault and stab LGBT inmates and EOP inmates. It was Defendants’ written and underground

19 policy to house STG-II inmates and STG-II “Two-Fivers” in the Lower Yard Buildings #1 and

20 #4, and in Facility D, where EOP inmates were not allowed to be housed due to the

21 victimizations.

22 It is Defendants’ and CDCR’s statewide policy not to house EOP inmates with non-EOP

23 inmates, not to house violent known STG-II prison gang members with EOP or DDP2 inmates,

24 and not to house LGBT inmate populations in specific prisons and yards in attempts to minimize

25 assaults, rapes, and victimizations. Defendants, knowing that the two inmates were STG-II

26 documented “Two-Fivers” with a history of violence and attacking LGBT and EOP inmates,

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2 CDCR’s Developmental Disability Program. 15 CCR § 3317.

1 deliberately disregarded this danger and released these individuals on October 11, 2018 and

2 allowed them to be housed among EOP and LGBT inmates.

3 This assault and stabbing could and should have been prevented had Defendants followed

4 protocol. They were fully aware of these inmates’ violence and documented prison gang

5 affiliation, and elected to disregard it and place other inmates’ lives and safety in danger. This

6 act led to Plaintiff being stabbed.

7 After filing 602 log no. KVSP-18-03203, and participating in a video-taped interview for

8 failure to protect (Staff Complaint) and requesting the names and badge numbers of all staff

9 involved, Defendants John Does #1 to #7 started retaliating against Plaintiff. Plaintiff was

10 threatened that if he continued to attempt filing 602s against staff or his missing property, that

11 they would place Plaintiff in the Lower Yard while the “Two-Fivers” from Building #4 were at

12 yard, and that they would tell the “Two-Fivers” that Plaintiff was ratting on the two inmates that

13 stabbed him.

14 KVSP is known to the CDCR inmate population for officers paying prison gangs and

15 setting up or encouraging fights and assaults for the officers’ entertainment, and for teaching an

16 inmate a lesson for either filing 602s against them or participating in an investigation relating to

17 officers. Plaintiff has personal knowledge of the ongoing assaults by staff on inmates, using

18 STG-II prison gang members by asking them to assault another LGBT inmate that the officers

19 felt had disrespected them.

20 When finally a threat was made directly by a Correctional Lieutenant in front of other

21 Defendants, Plaintiff believed they would carry out their threat of getting Plaintiff assaulted or

22 stabbed again. Plaintiff did not file a 602 for retaliation, as he had just been stabbed. The real

23 possibility of being stabbed again silenced him. Not only did Plaintiff lose $1,040.00 worth of

24 personal property because of retaliation, but the clowning around by the officer and threat made

25 if Plaintiff complained was terrifying to Plaintiff. Plaintiff reported some of his fears to his

26 clinician and the EOP supervisor, but Plaintiff was told they don’t get involved in custody issues.

27 Defendants John Does #1 to #7 were alerted that the two inmate “Two-Fivers” were in

28 an assaultive stance when they came out of their cell yelling “Two-Five,” but Defendants did

1 nothing to control the inmates, instead allowing these inmates to chase and stab Plaintiff before

2 taking action. Defendants’ deliberate indifference to Plaintiff’s or other EOP inmates’ safety is

3 sadly a common practice by CDCR and its employees. The defendant simply didn’t care to

4 prevent harm to EOP and LGBT inmates by STG-II inmates.

5 Plaintiff falls into two different classes of inmates: (1) EOP inmate, and (2) LGBT inmate.

6 Defendants have testified in state courts about STG-II prison gang violence and the conduct of

7 these gang members toward specific targeted inmates – here EOPs or LGBTs. For this reason,

8 CDCR and the Coleman case receiver have a policy of not housing EOP inmates with STG-II

9 gang members.

10 Here, Defendants knew of these individuals’ violent behavior and status as “Two-Fiver’

11 gang members, because the day before the Institution Classification Committee reviewed their

12 prison files. Defendants are fully aware that STG-II prison gang members view EOP inmates as

13 weak, not conforming to prison rules (politics), and LGBT inmates are viewed as a disgrace to

14 prison gang life. Defendants have been aware, and their policy has been not to house EOP

15 inmates with STG-II inmates. The CDCR houses STG-II members in separate buildings or yards,

16 and Defendants know of the substantial risks of serious harm to EOP and LGBT inmates at the

17 hands of prison gangs STG-II, especially “Two-Fivers.” Defendants knew of long-standing,

18 pervasive and well-documented risks, yet deliberately disregarded those risks causing Plaintiff

19 to be assaulted and stabbed. To add to the injury, Defendants pepper-sprayed Plaintiff while he

20 was prone down with a stab wound.

21 Several courts have found that inmates with mental health problems must be housed

22 separately from non-mental health-needs inmates, or separately from known violent or predatory

23 inmates or known gang members. CDCR and Defendants have adopted this practice for years as

24 they have full knowledge of the dangers of housing EOP inmates with the regular general

25 population.

26 Plaintiff filed a 602 for failure to protect and for the malicious pepper-spraying. Plaintiff

27 did a videotaped interview alleging his claims. After doing this, staff (Defendants) started to

28 retaliate in different ways, including by taking more than $1,090.00 worth of Plaintiff’s personal

1 property. Defendants laughed at Plaintiff for running from the assault. Defendants would call

2 Plaintiff a snitch for filing the 602. Defendants made several threats against Plaintiff to cause

3 him physical harm. They threatened to put Plaintiff in the lower yard when Building #4 STG-II

4 Two-Fivers were having yard, and informed them that Plaintiff had given up information about

5 the Two-Fivers who had stabbed Plaintiff. Even though Plaintiff never provided any information,

6 the fact that officers said that he did put Plaintiff’s life and safety at great risk, such as when

7 Lieutenant John Doe threatened Plaintiff in front of the other Defendants to get STGs to assault

8 or stab Plaintiff if he filed any staff complaint and identified the officer by name or badge.

9 Because Plaintiff was still recovering from his stab wound and Defendants failure to

10 protect him, his fear became so real that Plaintiff believed Defendants would carry out their

11 threats. This really prevented Plaintiff from filing any other 602s against involved staff, or any

12 staff. The chilling effect is part of retaliation under the First Amendment.

13 The fear of Defendants carrying out their threats, and the reality of possibly being

14 assaulted or stabbed again, justified Plaintiff’s failure to comply with the requirement to exhaust

15 his administrative procedures. The fear imposed on Plaintiff by Defendants’ threats made any

16 available 602 remedies unavailable.

17 Plaintiff requests monetary damages, including punitive damages, costs of suit, and

18 attorney’s fees.

19 IV. PLAINTIFF’S CLAIMS

20 The Civil Rights Act under which this action was filed provides:

21 Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

22 be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

23 secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress . . . .

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25 42 U.S.C. § 1983.

26 [Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method

27 for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393-94

28 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. Houston

1 Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 1059,

2 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v.

3 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law

4 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the

5 federal Constitution, Section 1983 offers no redress.” Id.

6 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under

7 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution

8 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also

9 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of

10 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983,

11 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act

12 which he is legally required to do that causes the deprivation of which complaint is made.’”

13 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting

14 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be

15 established when an official sets in motion a ‘series of acts by others which the actor knows or

16 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479

17 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles

18 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp.,

19 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010,

20 1026 (9th Cir. 2008).

21 A. Official and Individual Capacities

22 Plaintiff brings this action against Defendants in their official and individual capacities.

23 Plaintiff may not bring a suit for damages against Defendants in their official capacities. “The

24 Eleventh Amendment bars suits for money damages in federal court against a state, its agencies,

25 and state officials in their official capacities.” Aholelei v. Dept. of Public Safety, 488 F.3d 1144,

26 1147 (9th Cir. 2007) (citations omitted). However, the Eleventh Amendment does not bar suits

27 seeking damages against state officials in their personal capacities, Hafer v. Melo, 502 U.S. 21,

28 30 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003), or suits for declaratory or injunctive

1 relief brought against state officials in their official capacities, Austin v. State Indus. Ins. System,

2 939 F.2d 676, 680 fn.2 (9th Cir. 1991). Therefore, Plaintiff fails to state a claim for damages

3 against Defendants in their official capacities, but he is not barred by the Eleventh Amendment

4 from seeking injunctive or declaratory relief against Defendants in their official capacities, or

5 from seeking money damages from Defendants in their individual capacities.

6 B. Supervisory Liability and Personal Participation

7 Plaintiff names defendants who hold supervisory positions, such as the Warden and the

8 CDCR Director of Adult Operations. A supervisor is only liable for the constitutional violations

9 of . . . subordinates if the supervisor participated in or directed the violations, or knew of the

10 violations and failed to act to prevent them. There is no respondeat superior liability under [§]

11 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations omitted). Plaintiff must

12 demonstrate that each defendant, through his or her own individual actions, violated Plaintiff’s

13 constitutional rights. Iqbal, 556 U.S. at 676; Corales v. Bennett, 567 F.3d 554, 570 (9th Cir.

14 2009). Therefore, to the extent that Plaintiff seeks to impose liability upon any of the defendants

15 in their supervisory capacity, Plaintiff fails to state a claim.

16 Under section 1983, Plaintiff must demonstrate that each defendant personally

17 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002)

18 (emphasis added). Plaintiff must demonstrate that each defendant, even a Doe defendant, through

19 his or her own individual actions, violated Plaintiff’s constitutional rights. Iqbal, 556 U.S. at

20 676-77. Plaintiff must link the named defendants to the participation in the violation at issue. Id.

21 at 662; Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v.

22 City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934 (9th Cir. 2002).

23 There must exist some causal connection between the conduct of each named defendant and the

24 violation at issue. Iqbal, 556 U.S. at 676-77; Lemire v. California Dep’t of Corr. and Rehab.,

25 726 F.3d 1062, 1074-75(9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th

26 Cir. 2012) (en banc); Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011), cert. denied, 132

27 S.Ct. 2101 (2012).

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1 In the Complaint, Plaintiff fails to allege facts showing that any of the individual

2 Defendants, including individual Doe defendants, personally acted against him. Plaintiff fails

3 to attribute any personal act to any particular Defendant. Plaintiff refers to “Defendants” or “Doe

4 defendants” throughout the Complaint and alleges that they collectively failed to protect Plaintiff

5 or retaliated against Plaintiff. Plaintiff cannot state a claim against any of the Defendants unless

6 he demonstrates in his allegations that the Defendant, identified by name or Doe defendant

7 number, personally acted or failed to act, violating Plaintiff’s rights. Plaintiff may not attribute

8 liability to a group of defendants, but must “set forth specific facts as to each individual

9 defendant’s” deprivation of his rights. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); see

10 also Taylor, 880 F.2d at 1045.

11 Plaintiff shall be granted an opportunity to amend the complaint, to cure this deficiency.

12 To state a claim against a defendant, or a particular Doe Defendant, Plaintiff must name the

13 defendant and allege facts showing what that individual defendant did or failed to do. Plaintiff

14 must allege personal acts by each defendant, showing that each defendant acted in a way that

15 violated Plaintiff’s rights and caused him harm. Plaintiff has not done so and therefore fails to

16 state a cognizable claim against any of the Defendants.

17 Plaintiff shall be granted leave to file a First Amended Complaint curing the deficiencies

18 in his claims identified by the court. The court shall set forth the legal standards in the following

19 paragraphs for an Eighth Amendment failure-to-protect claim, Eighth Amendment excessive

20 force claim, and First Amendment retaliation claim. Plaintiff is advised to review the legal

21 standards before deciding which claims to bring in the First Amended Complaint.

22 C. Failure to Protect

23 The Eighth Amendment protects prisoners from inhumane methods of punishment and

24 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

25 2006). Although prison conditions may be restrictive and harsh, prison officials must provide

26 prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v.

27 Brennan, 511 U.S. 825, 832-33 (1994) (internal citations and quotations omitted). Prison

28 officials have a duty to take reasonable steps to protect inmates from physical abuse. Id. at 833;

1 Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). The failure of prison officials to protect

2 inmates from attacks by other inmates may rise to the level of an Eighth Amendment violation

3 where prison officials know of and disregard a substantial risk of serious harm to the plaintiff.

4 E.g., Farmer, 511 U.S. at 847; Hearns, 413 F.3d at 1040.

5 To establish a violation of this duty, the prisoner must establish that prison officials were

6 “deliberately indifferent to a serious threat to the inmate’s safety.” Farmer, 511 U.S. at 834. The

7 question under the Eighth Amendment is whether prison officials, acting with deliberate

8 indifference, exposed a prisoner to a sufficiently “substantial risk of serious harm” to his future

9 health. Id. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). The Supreme Court has

10 explained that “deliberate indifference entails something more than mere negligence . . . [but]

11 something less than acts or omissions for the very purpose of causing harm or with the knowledge

12 that harm will result.” Farmer, 511 U.S. at 835. The Court defined this “deliberate indifference”

13 standard as equal to “recklessness,” in which “a person disregards a risk of harm of which he is

14 aware.” Id. at 836-37.

15 The deliberate indifference standard involves both an objective and a subjective prong.

16 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Id. at 834.

17 Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate

18 health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995).

19 To prove knowledge of the risk, however, the prisoner may rely on circumstantial evidence; in

20 fact, the very obviousness of the risk may be sufficient to establish knowledge. Farmer, 511 U.S.

21 at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995).

22 D. Excessive Force

23 Plaintiff alleges that he was pepper-sprayed by Defendants after he was assaulted by

24 another inmate and was in a prone position on the ground.

25 “What is necessary to show sufficient harm for purposes of the Cruel and Unusual

26 Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . .” Hudson

27 v. McMillian, 503 U.S. 1, 8 (1992). “The objective component of an Eighth Amendment claim

28 is . . . contextual and responsive to contemporary standards of decency.” Id. (internal quotation

1 marks and citations omitted). The malicious and sadistic use of force to cause harm always

2 violates contemporary standards of decency, regardless of whether or not significant injury is

3 evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment

4 excessive force standard examines de minimis uses of force, not de minimis injuries)). However,

5 not “every malevolent touch by a prison guard gives rise to a federal cause of action.” Id. at 9.

6 “The Eighth Amendment’s prohibition of cruel and unusual punishments necessarily excludes

7 from constitutional recognition de minimis uses of physical force, provided that the use of force

8 is not of a sort ‘repugnant to the conscience of mankind.” Id. at 9-10 (internal quotations marks

9 and citations omitted).

10 “[W]henever prison officials stand accused of using excessive physical force in violation

11 of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was

12 applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to

13 cause harm.” Id. at 7. “In determining whether the use of force was wanton and unnecessary, it

14 may also be proper to evaluate the need for application of force, the relationship between that

15 need and the amount of force used, the threat reasonably perceived by the responsible officials,

16 and any efforts made to temper the severity of a forceful response.” Id. (internal quotation marks

17 and citations omitted). “The absence of serious injury is . . . relevant to the Eighth Amendment

18 inquiry, but does not end it.” Id.

19 E. Retaliation

20 “Prisoners have a First Amendment right to file grievances [and lawsuits] against prison

21 officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114

22 (9th Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the

23 prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An

24 assertion that a state actor took some adverse action against an inmate (2) because of (3) that

25 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First

26 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”

27 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). To state a cognizable retaliation

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1 claim, Plaintiff must establish a nexus between the retaliatory act and the protected activity.

2 Grenning v. Klemme, 34 F.Supp.3d 1144, 1153 (E.D. Wash. 2014).

3 F. Doe Defendants

4 Plaintiff names Doe defendants in this action. Unidentified, or “John Doe” defendants

5 must be named or otherwise identified before service can go forward. “As a general rule, the

6 use of ‘John Doe’ to identify a defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637,

7 642 (9th Cir. 1980). Plaintiff is advised that John Doe or Jane Doe defendants cannot be served

8 until Plaintiff has identified them as actual individuals and amended his complaint to substitute

9 names for John Doe or Jane Doe. For service to be successful, the Marshal must be able to

10 identify and locate defendants.

11 G. Relief Requested

12 Plaintiff requests attorney’s fees as relief in this case. With regard to attorney’s fees, “[i]n

13 any action or proceeding to enforce a provision of section[] 1983. . . , the court, in its discretion,

14 may allow the prevailing party. . . reasonable attorney’s fees. . . .” 42 U.S.C. § 1988(b).

15 Plaintiff’s contention that he is entitled to attorney’s fees if he prevails is without merit. Plaintiff

16 is representing himself in this action. Because Plaintiff is not represented by an attorney, he is

17 not entitled to recover attorney’s fees if he prevails. See Friedman v. Arizona, 912 F.2d 328,

18 333 n.2 (9th Cir. 1990), superseded by statute as stated in Warsoldier v. Woodford, 418 F.3d 989

19 (9th Cir. 2005); Gonzalez v. Kangas, 814 F.2d 1411, 1412 (9th Cir. 1987); see also Rickley v.

20 Cnty. of Los Angeles, 654 F.3d 950, 954 (9th Cir. 2011) (“The Court accordingly adopted a per

21 se rule, categorically precluding an award of attorney’s fees under § 1988 to a pro se attorney-

22 plaintiff.”) Therefore, Plaintiff is not entitled to attorney’s fees if he prevails in this action.

23 V. CONCLUSION AND ORDER

24 For the reasons set forth above, the court finds that Plaintiff fails to state any cognizable

25 claims in the Complaint against any of the individual Defendants. Under Rule 15(a) of the

26 Federal Rules of Civil Procedure, “[t]he court should freely give leave to amend when justice so

27 requires.” Plaintiff shall be granted leave file an amended complaint within thirty days. Noll v.

28 Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).

1 The amended complaint should be brief, Fed. R. Civ. P. 8(a), but must state what each

2 named defendant did that led to the deprivation of Plaintiff’s constitutional or other federal rights.

3 Iqbal, 556 U.S. at 678; Jones, 297 F.3d. at 934. Plaintiff must set forth “sufficient factual matter

4 . . . to ‘state a claim that is plausible on its face.’” Iqbal at 678 (quoting Twombly, 550 U.S. at

5 555). There is no respondeat superior liability, and each defendant is only liable for his or her

6 own misconduct. Iqbal, 556 U.S. at 677. Plaintiff must demonstrate that each defendant

7 personally participated in the deprivation of his rights. Jones, 297 F.3d at 934 (emphasis added).

8 Plaintiff should note that although he has been given the opportunity to amend, it is not for the

9 purpose of adding new defendants for unrelated issues. Plaintiff should also note that he has not

10 been granted leave to add allegations of events occurring after the initiation of this suit on

11 December 23, 2019.

12 Twenty-five pages is sufficient for Plaintiff to state his allegations and claims and submit

13 any exhibits. Plaintiff is limited to 25 pages total in the First Amended Complaint, including

14 exhibits. In addition, the First Amended Complaint must be written in legible, double-spaced or

15 larger text or handwriting. The court shall strike Plaintiff’s First Amended Complaint if it does

16 not comply with these guidelines.

17 Plaintiff is advised that an amended complaint supercedes the original complaint, Lacey,

18 693 F.3d at 907 n.1, and it must be complete in itself without reference to the prior or superceded

19 pleading. Local Rule 220. Once an amended complaint is filed, the original complaint no longer

20 serves any function in the case. Therefore, in an amended complaint, as in an original complaint,

21 each claim and the involvement of each defendant must be sufficiently alleged. The amended

22 complaint should be clearly and boldly titled “First Amended Complaint,” refer to the appropriate

23 case number, and be an original signed under penalty of perjury.

24 Accordingly, IT IS HEREBY ORDERED that:

25 1. Based on the foregoing, the court finds that Plaintiff fails to state any cognizable

26 claims in the Complaint against any of the individual Defendants upon which

27 relief may be granted under § 1983;

28 2. Plaintiff’s Complaint is dismissed for failure to state a claim, with leave to amend

1 within thirty (30) days from the date of service of this order:

2 3. The Clerk’s Office shall send Plaintiff a civil rights complaint form;

3 4. Plaintiff shall caption the amended complaint “First Amended Complaint” and

4 refer to the case number 1:19-cv-01786-NONE-GSA-PC; and

5 5. Plaintiff’s failure to comply with this order shall result in a recommendation that

6 this case be dismissed.

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IT IS SO ORDERED.

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9 Dated: February 25, 2021 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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