(PC) Spencer v. Jasso

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 EDWARD SPENCER, 1:20-cv-00909-DAD-GSA-PC

12 Plaintiff, SCREENING ORDER

13 vs. ORDER DISMISSING COMPLAINT FOR

FAILURE TO STATE A CLAIM, WITH

14 JASSO, et al., LEAVE TO AMEND

15 Defendants. (ECF No. 1.)

16 THIRTY DAYS TO FILE FIRST

AMENDED COMPLAINT

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18 I. BACKGROUND

19 Edward Spencer (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

20 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

21 commencing this action on June 30, 2020. (ECF No. 1.) The Complaint is now before the court

22 for screening. 28 U.S.C. § 1915.

23 II. SCREENING REQUIREMENT

24 The Court is required to screen complaints brought by prisoners seeking relief against a

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

13 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal

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

15 plausibility standard. Id.

16 III. SUMMARY OF COMPLAINT

17 Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility

18 and State Prison (SATF) in Corcoran, California, in the custody of the California Department of

19 Corrections and Rehabilitation (CDCR). The events at issue in the Complaint allegedly occurred

20 at SATF. Plaintiff names as defendants J. Jasso (Mailroom) and S. Hillman (Mailroom

21 Supervisor) (collectively, “Defendants”). Plaintiff sues Defendants in their individual capacities.

22 A summary of Plaintiff’s allegations follows:

23 Plaintiff has been housed at SATF since 2006 and has never had his mail withheld for an

24 inordinate amount of time until he filed a grievance against the mailroom, Lieutenant Lopez [not

25 a defendant], and other custody staff. There is no reason other than retaliation for Plaintiff

26 exercising his Constitutional and civil rights supporting Defendants’ conduct in withholding mail

27 from October 2019 through February 5, 2020 (when discovered), without providing Plaintiff a

28 notice. Plaintiff’s incoming mail was withheld for 30 to 150 days without notice. Defendants

1 placed a chill effect on Plaintiff by withholding his incoming and outgoing mail, and their

2 conduct did not advance a legitimate penological goal. It does not take thirty or more days to

3 screen Plaintiff’s mail to ensure that there is no contraband inside. Pursuant to California

4 regulations, Defendants had a duty to deliver mail not later than seven days from receipt at the

5 facility, unless Plaintiff was notified. Defendants violated due process when they failed to

6 provide him with notice of his withheld mail. Defendants’ conduct amounted to extreme and

7 outrageous conduct that caused Plaintiff’s well being to be interfered with such as stressing him

8 out. No reasonable person in a civilized society should be expected to endure receiving his mail

9 a hundred and fifty days after Defendants received said mail.

10 Plaintiff believes that Lieutenant D. Lopez [not a defendant] authorized Defendants to

11 withhold Plaintiff’s mail because Plaintiff filed grievances against him and the mailroom staff.

12 Plaintiff had been granted approval from CDCR to correspond with all of the inmate-to-inmate

13 mails that were being withheld. Defendant Hillman, Mailroom Supervisor, was notified that

14 mails were being withheld and she granted appeal no. SATF-G-19-07306, which also provided

15 notice to her about the withheld mail. Defendants’ actions were in violation of the D.O.M. policy.

16 Plaintiff was reluctant to file other grievances challenging other incidents involving Defendants

17 based on Defendants’ conduct. Plaintiff filed a 602 appeal complaining of Defendants’

18 retaliation conduct. Plaintiff has complied with the California Government Code Tort Claims

19 Act.

20 Plaintiff requests as relief a declaratory judgment, compensatory and punitive damages,

21 and costs of suit.

22 IV. PLAINTIFF’S CLAIMS

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

24 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

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

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

26 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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28 42 U.S.C. § 1983.

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

2 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386,

3 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v.

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

5 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

22 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010,

23 1026 (9th Cir. 2008).

24 A. Personal Participation

25 Under section 1983, Plaintiff must link the named defendants to their participation in the

26 violation at issue. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d 1011,

27 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones

28 v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). A supervisor is only liable for the constitutional

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

2 of the violations and failed to act to prevent them. Liability may not be imposed under a theory

3 of respondeat superior, and there must exist some causal connection between the conduct of each

4 named defendant and the violation at issue. Iqbal, 556 U.S. at 676-77; Lemire v. California Dep’t

5 of Corr. and Rehab., 726 F.3d 1062, 1074-75(9th Cir. 2013); Lacey v. Maricopa County, 693

6 F.3d 896, 915-16 (9th Cir. 2012) (en banc); Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir.

7 2011), cert. denied, 132 S.Ct. 2101 (2012).

8 Here, Plaintiff fails to clearly state what happened. Plaintiff refers to an “incident [that]

9 occurred on (sic)] October 2019 thru February 5, 2020.” (Comp., ECF No. 1 at 8 ¶8.) Plaintiff

10 also alleges that his “incoming mail was withheld for 30 to 150 days,” (Id. at 9 ¶ 18.), and that

11 he should not be forced to endure receiving his mail “a hundred and fifty days” after Defendants

12 received said mail. (Id. at 10 ¶ 37.)

13 To state a claim, Plaintiff must be more factually specific, describing how he knows his

14 mail was being withheld, when exactly it was withheld, the duration of each period his mail was

15 withheld, on how many occasions it was withheld, and finally setting forth facts connecting each

16 of the named defendants with the act of withholding his mail explaining how it is he knows that

17 the two named defendants were involved in the withholding of his mail. Plaintiff should use try

18 to use dates to explain when each incident occured, preferably stating allegations in chronological

19 order. Speculative or conclusory allegations are not sufficient to state a claim. For the retaliation

20 claim, Plaintiff needs to show a causal connection between his filing of the appeal and the

21 withholding of his mail, and demonstrate how he knows the named defendants were responsible

22 and were doing so for a retaliatory reason. Plaintiff should disclose what Defendants’ stated

23 reason was for withholding his mail. If possible, Plaintiff should allege how and when

24 Defendants knew that Plaintiff filed the appeal. Plaintiff should also allege any harm or injuries

25 he suffered as a result of Defendants’ conduct.

26 Presently, Plaintiff fails to state a claim in the Complaint against either of the named

27 Defendants. Accordingly, the court shall dismiss the Complaint for failure to state a claim, with

28 leave to amend. Plaintiff shall be granted leave to file a First Amended Complaint to cure the

1 deficiencies in his claims identified by the court. In the paragraphs that follow, the court shall

2 set forth the legal standards for the claims it appears Plaintiff wishes to bring. Plaintiff should

3 review the legal standards before deciding which claims to bring in the First Amended

4 Complaint.

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6 B. Mail Protections

7 Prisoners have “a First Amendment right to send and receive mail.” Witherow v. Paff,

8 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). Nevertheless, correctional institutions and jails

9 have a legitimate governmental interest in imposing certain restraints on inmate or detainee

10 correspondence to maintain order and security. See Procunier v. Martinez, 416 U.S. 396, 413

11 (1974), overturned on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 413–14 (1989).

12 For example, inmates and detainees may have their mail screened to ensure that there is no

13 contraband inside. Mangiaracina v. Penzone, 849 F.3d 1191, 1195 (9th Cir. 2017). The mere

14 fact that prison officials open and conduct a visual inspection of a prisoner’s mail does not state

15 a claim for violation of a prisoner’s constitutional rights. Wolff v. McDonnell, 418 U.S. 539,

16 576–77 (1974); Nordstrom v. Ryan, 762 F.3d 903, 908-909 (9th Cir. 2014) (“Nordstrom I”);

17 Mitchell v. Dupnick, 75 F.3d 517, 523 (9th Cir. 1996).

18 A prison may adopt regulations or practices which impinge on a prisoner’s First

19 Amendment rights as long as the regulations are “reasonably related to legitimate penological

20 interests.” See Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254 (1987). The Turner standard

21 applies to regulations and practices concerning all correspondence between prisoners and

22 regulations concerning incoming mail received by prisoners from non-prisoners. See

23 Thornburgh, 490 U.S. at 413. Prisoners also have a liberty interest in the receipt of mail,

24 including subscription publications, which triggers procedural due process guarantees. Krug v.

25 Lutz, 329 F.3d 692, 696-697 (9th Cir. 2003). If prison officials withhold mail, a prisoner has a

26 due process right to receive notice that his incoming mail is being withheld. See Frost v.

27 Symington, 197 F.3d 348, 353-54 (9th Cir. 1999); see also Prison Legal News v. Cook, 238 F.3d

28 1145, 1152-53 (9th Cir. 2001) (holding that due process rights apply to withheld mail where

1 prisoners had constitutionally protected right to receive the mail). A prisoner also has a due

2 process right to appeal the exclusion of mail to a prison official other than the one who made the

3 initial exclusion decision. See Krug, 329 F.3d at 697-98 & n.5.

4 In the Ninth Circuit, “mail from the courts, as contrasted with mail from a prisoner’s

5 lawyer, is not legal mail.” Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996). “All

6 correspondence from a court to a litigant is a public document, which prison personnel could if

7 they want inspect in the court’s files.” Id. (citing Martin v. Brewer, 830 F.2d 76, 78 (7th Cir.

8 1987) ).

9 Under federal law, “legal mail” entitled to First Amendment protection is narrowly

10 defined as confidential correspondence between a prisoner and his attorney. See Nordstrom I,

11 762 F.3d at 909. The Ninth Circuit “recognize[s] that prisoners have a protected First

12 Amendment interest in having properly marked legal mail [including civil mail] opened only in

13 their presence.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017). However, an

14 isolated instance or occasional opening of legal mail outside the inmate’s presence does not rise

15 to the level of a constitutional violation. See Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th

16 Cir. 1989).

17 In criminal cases, such correspondence is also protected by the Sixth Amendment. See

18 Mangiaracina, 849 F.3d at 1196 (and cases cited therein). “[P]rison officials may open, but not

19 read, incoming legal mail in the presence of the inmate.” Nordstrom v. Ryan, 856 F.3d 1265,

20 1272 (9th Cir. 2017) (“Nordstrom II”) (citing Wolff, 418 U.S. at 577. “[T]he practice of requiring

21 an inmate to be present when his legal mail is opened is a measure designed to prevent officials

22 from reading the mail in the first place.” Nordstrom I, 762 F.3d at 910 (citing Wolff at 577);

23 Mangiaracina, 849 F.3d at 1196 (Sixth Amendment requires a pretrial detainee be present when

24 legal mail related to a criminal matter is inspected; even a single incident of improper reading of

25 a pretrial detainee’s mail may give rise to a constitutional violation).

26 C. Due Process

27 Prisoners also have a liberty interest in the receipt of mail, including subscription

28 publications, which triggers procedural due process guarantees. Krug, 329 F.3d at 696–697). If

1 prison officials withhold mail, a prisoner has a due process right to receive notice that his

2 incoming mail is being withheld. See Frost, 197 F.3d at 353–54; see also Prison Legal News,

3 238 F.3d at 1152–53 (holding that due process rights apply to withheld mail where prisoners had

4 constitutionally protected right to receive the mail). A prisoner also has a due process right to

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6 appeal the exclusion of mail to a prison official other than the one who made the initial exclusion

7 decision. See Krug, 329 F.3d at 697–98 & n.5.

8 D. Eighth Amendment Claim

9 Plaintiff alleges that Defendants’ conduct amounted to “extreme and outrageous conduct,

10 which caused Plaintiff’s well-being to be interfered with such as stressing him out[, and n]o

11 reasonable person in a civilized society should be expected to endure receiving his mail a hundred

12 and fifty days after Defendants received said mail.” (Comp., ECF No 1 at 12 ¶ 54.) These

13 allegations bring to mind an Eighth Amendment violation.

14 The Eighth Amendment’s prohibition against cruel and unusual punishment protects

15 prisoners not only from inhumane methods of punishment but also from inhumane conditions of

16 confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer v.

17 Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994) and Rhodes v. Chapman, 452 U.S. 337, 347,

18 101 S.Ct. 2392 (1981)) (quotation marks omitted). While conditions of confinement may be, and

19 often are, restrictive and harsh, they must not involve the wanton and unnecessary infliction of

20 pain. Morgan, 465 F.3d at 1045 (citing Rhodes, 452 U.S. at 347) (quotation marks omitted).

21 Thus, conditions which are devoid of legitimate penological purpose or contrary to evolving

22 standards of decency that mark the progress of a maturing society violate the Eighth Amendment.

23 Morgan, 465 F.3d at 1045 (quotation marks and citations omitted); Hope v. Pelzer, 536 U.S. 730,

24 737, 122 S.Ct. 2508 (2002); Rhodes, 452 U.S. at 346. Prison officials have a duty to ensure that

25 prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal

26 safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quotation marks and citations

27 omitted), but not every injury that a prisoner sustains while in prison represents a constitutional

28 violation, Morgan, 465 F.3d at 1045 (quotation marks omitted).

1 To maintain an Eighth Amendment claim, a prisoner must show that prison officials were

2 deliberately indifferent to a substantial risk of harm to his health or safety. E.g., Farmer, 511

3 U.S. at 847; Thomas v. Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010); Foster v. Runnels, 554

4 F.3d 807, 812-14 (9th Cir. 2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v.

5 Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The deliberate indifference standard involves an

6 objective and a subjective prong. First, the alleged deprivation must be, in objective terms,

7 “sufficiently serious . . . .” Farmer, 511 U.S. at 834. “[R]outine discomfort inherent in the prison

8 setting” does not rise to the level of a constitutional violation. Johnson, 217 F.3d at 731. Rather,

9 extreme deprivations are required to make out a conditions of confinement claim, and only those

10 deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to

11 form the basis of an Eighth Amendment violation. Farmer, 511 U.S. at 834; Hudson v.

12 McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992). The circumstances, nature, and duration of the

13 deprivations are critical in determining whether the conditions complained of are grave enough

14 to form the basis of a viable Eighth Amendment claim. Johnson, 217 F.3d at 731. Second, the

15 prison official must “know[] of and disregard[] an excessive risk to inmate health or safety . . . .”

16 Farmer, 511 U.S. at 837. Thus, a prison official may be held liable under the Eighth Amendment

17 for denying humane conditions of confinement only if he knows that inmates face a substantial

18 risk of harm and disregards that risk by failing to take reasonable measures to abate it. Id. at 837-

19 45. Mere negligence on the part of the prison official is not sufficient to establish liability, but

20 rather, the official’s conduct must have been wanton. Farmer, 511 U.S. at 835; Frost, 152 F.3d

21 at 1128.

22 E. Retaliation

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

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

25 (9th Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the

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

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

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

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

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

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

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

5 ///

6 F. State Law Claims

7 Plaintiff is informed that state law claims such as negligence, violation of state

8 regulations, or failure to comply with CDCR rules are not sufficient to state a claim for relief

9 under § 1983. To state a claim under § 1983, there must be a deprivation of federal constitutional

10 or statutory rights. See Paul v. Davis, 424 U.S. 693 (1976). Although the court may exercise

11 supplemental jurisdiction over state law claims, Plaintiff must first have a cognizable claim for

12 relief under federal law. See 28 U.S.C. § 1367. In this instance, the Court fails to find any

13 cognizable federal claims in the Complaint. Therefore, Plaintiff’s state claims fail.

14 Moreover, to state a cognizable state law claim, Plaintiff must sufficiently plead the claim

15 presentation requirement contained in California Government Code § 900 et seq.1 California’s

16 Government Claims Act establishes certain conditions precedent to the filing of a lawsuit against

17 a public entity. State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1237, 90 P.3d 116, 118 (2004).

18 “[A] plaintiff must timely file a claim for money or damages with the public entity, (§ 911.2.),

19 and the failure to do so bars the plaintiff from bringing suit against that entity, (§ 945.4.).” Id.

20 Compliance with the claim presentation requirement is an element of the cause of action, Bodde,

21 32 Cal.4th at 1240, and is required, Mangold v. California Public Utilities Com’n, 67 F.3d 1470,

22 1477 (9th Cir. 1995), and “failure to file a claim is fatal to a cause of action,” Hacienda La Puente

23 Unified School Dist. Of Los Angeles v. Honig, 976 F.2d 487, 495 (9th Cir. 1992); City of

24 Stockton v. Superior Court, 42 Cal.4th 730, 738 (Cal. 2007) at 738; Shirk v. Vista Unified Sch.

25 Dist., 42 Cal.4th 201, 208-09 (Cal. 2007). The government claim must be filed or presented to

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1 Formerly known as the California Tort Claims Act. City of Stockton, 42 Cal.4th 730,

27 741-42 (Cal. 2007) (adopting the practice of using Government Claims Act rather than California Tort

Claims Act).

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1 the public entity no later than six months after the cause of action accrues. California Government

2 Code § 911.2. A plaintiff “must allege facts demonstrating or excusing compliance with the

3 claim presentation requirement.” Robinson v. Alameda Cty., 875 F. Supp. 2d 1029, 1043 (N.D.

4 Cal. 2012) (quoting Bodde, 32 Cal.4th at 1243; Mangold, 67 F.3d at 1477 (quoting Snipes v. City

5 of Bakersfield, 145 Cal.App.3d 861, 865, 193 Cal.Rptr. 760 (1983) (“Where compliance with

6 the [CGCA] is required, the plaintiff must allege compliance or circumstances excusing

7 compliance, or the complaint is subject to general demurrer.”)); D.K. ex rel. G.M. v. Solano

8 County Office of Education, 667 F.Supp.2d 1184, 1195 (E.D. Cal. 2009); Karim–Panahi v. Los

9 Angeles Police Department, 839 F.2d 621, 627 (9th Cir. 1988); Flanagan v. Benicia Unified

10 School District, 2008 WL 435355 (E.D .Cal. Feb. 14, 2008)). “[A] bare allegation that the

11 [CGCA] has been followed would seem to be a mere conclusion that is insufficient under Iqbal

12 and Twombly . . .” Young v. City of Visalia, 687 F.Supp.2d 1141, 1152 (E.D. Cal. 2009).

13 Here, Plaintiff states that he “has complied with the California Government Code Tort

14 Claims Statute.” (ECF No. 1 at 11 ¶ 44.) This statement is insufficient to show compliance.

15 See Cardenas v. Cty. of Tehama, No. 218CV03021TLNDMC, 2020 WL 4475188, at *10 (E.D.

16 Cal. Aug. 4, 2020) (While the Complaint here states “Plaintiffs filed timely administrative ‘tort’

17 claims against County of Tehama, City of Corning, and State of California officials pursuant to

18 Cal. Gov. Code §§ 910 et seq., and hereby timely files this lawsuit within six months of

19 defendants’ rejections of those claims,” this statement is a mere legal conclusion.)

20 In the present case, Plaintiff has not provided his claim as an attachment to the Complaint,

21 nor has he alleged or shown what specific facts and causes of action were referred to in the claim.

22 Plaintiff must show that the claim was timely. Without such information Plaintiff has not

23 sufficiently pleaded facts demonstrating that he complied with the Government Claims Act in

24 bringing his state law claims.

25 Therefore, Plaintiff fails to state any cognizable state law claims in the Complaint.

26 G. Relief Requested

27 Plaintiff seeks a declaratory judgment that Defendants’ actions violated his rights

28 under the United States Constitution and as otherwise alleged in the Complaint. A request for

1 declaratory relief should be denied because it is subsumed by Plaintiff’s damages claim. See

2 Rhodes, 408 F.3d at 565-66 n.8 (because claim for damages entails determination of whether

3 officers’ alleged conduct violated plaintiff’s rights, the separate request for declaratory relief is

4 subsumed by damages action); see also Fitzpatrick v. Gates, No. CV 00-4191-GAF (AJWx),

5 2001 WL 630534, at *5 (C.D. Cal. Apr. 18, 2001) (“Where a plaintiff seeks damages or relief

6 for an alleged constitutional injury that has already occurred declaratory relief generally is

7 inappropriate[.]”)

8 V. CONCLUSION

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

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

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

12 requires.” Plaintiff shall be granted leave file a First Amended Complaint within thirty days.

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

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

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

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

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

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

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

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

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

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

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

24 30, 2020.

25 Plaintiff is advised that an amended complaint supersedes the original complaint, Lacey,

26 693 F.3d at 907 n.1, and it must be complete in itself without reference to the prior or superseded

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

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

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

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

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

4 ///

5 Accordingly, IT IS HEREBY ORDERED that:

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

7 claims in the Complaint against any of the Defendants upon which relief may be

8 granted under § 1983;

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

10 within thirty (30) days from the date of service of this order;

11 3. Plaintiff’s request for declaratory relief is dismissed without leave to amend;

12 4. The Clerk’s Office shall send Plaintiff a civil rights complaint form;

13 5. Plaintiff shall caption the amended complaint “First Amended Complaint” and

14 refer to the case number 1:20-cv-00909-DAD-GSA-PC; and

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

16 this case be dismissed.

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IT IS SO ORDERED.

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19 Dated: September 18, 2021 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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