Andrew L Kicking Horse McCarter v. Erica Lake

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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12 ANDREW L. KICKING HORSE Case No. 2:20-cv-00112-DOC (AFM)

McCARTER,

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ORDER DISMISSING COMPLAINT

Plaintiff,

14 WITH LEAVE TO AMEND

v.

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ERICA LAKE, et al.,

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Defendants.

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19 Plaintiff, a state prisoner currently incarcerated at the California State Prison,

20 Lancaster (“CSP-LAC”), filed this pro se civil rights action pursuant to 42 U.S.C.

21 § 1983 on January 6, 2020. (ECF No. 1.) Plaintiff’s request to proceed without

22 prepayment of the filing fees was denied by the assigned District Judge, and plaintiff

23 was ordered to pay the filing fees in full by no later than February 12, 2020. (ECF

24 Nos. 2, 4.) Plaintiff paid a portion of the filing fees on February 5, 2020, and the

25 Court ordered plaintiff to pay the balance of the filing fees by no later than March 6,

26 2020. (ECF No. 6.) To date, plaintiff has failed to pay the balance that is due.

27 Accordingly, plaintiff is ORDEREDto pay the outstanding balance of the filing fees

28 within 30 days of this Order,or the Court will recommend that this case bedismissed.

1 In his Complaint, plaintiff names as defendants E. Lake, CSP-LAC’s

2 Community Resources Manager, in her individual and official capacities; J. Lazar,

3 CSP-LAC’s chaplain, in his individual and official capacities; R. Diaz, the Secretary

4 of the California Department of Corrections and Rehabilitation (“CDCR”), in his

5 official capacity; and R. Johnson, the Warden of CSP-LAC, in his official capacity.

6 (ECF No. 1 at 3-4, 10-12.) Plaintiff purports to raise four claims under the Religious

7 Land Use and Institutionalized Persons Act (“RLUIPA”), under the Religious

8 Exercise Clause of the First Amendment, for retaliation under the First Amendment,

9 and for “Breach of Settlement Agreement.” (Id. at 5, 27-30.) Plaintiff seeks

10 injunctive relief to prevent “defendants” from continuing to implement or enforce

11 unspecified “illegal actions, decisions, policies, and/or regulations” as well as

12 damages. (Id. at 6, 31-32.)

13 Plaintiff’s factual allegations begin with events from October 2014 (id. at 8,

14 16), and include a statement that the “parties” entered into a Settlement Agreement

15 in June 2018 (id. at 8, 18). Plaintiff alleges that defendants agreed to construct a

16 structure (a “sweat lodge”) for use in plaintiff’s religious exercises, referencing a

17 “Settlement Agreement” from case no. 16cv05672-TJH (JEM) (“case 16cv05672”).

18 (Id. at 8, 18.) Plaintiff then alleges that “defendants have breached the settlement

19 agreement and continue to burden the exercise of [plaintiff’s] sincere religious

20 beliefs.” (Id. at 8.)

21 In accordance with the terms of the Prison Litigation Reform Act of 1995

22 (“PLRA”), the Court has screened the Complaintprior to ordering service for purpose

23 of determining whether the action is frivolous or malicious; or fails to state a claim

24 on which relief may be granted; or seeks monetary relief against a defendant who is

25 immune from such relief. See 28 U.S.C. § 1915A; 42 U.S.C. § 1997e(c)(1).

26 The Court’s screening of the pleading under the foregoing statutes is governed

27 by the following standards. A complaint may be dismissed as a matter of law for

28 failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or

1 (2) insufficient facts alleged under a cognizable legal theory. See, e.g., Kwan v.

2 SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017); see also Rosati v. Igbinoso,

3 791 F.3d 1037, 1039 (9th Cir. 2015) (when determining whether a complaint should

4 be dismissed for failure to state a claim under the PLRA, the court applies the same

5 standard as applied in a motion to dismiss pursuant to Rule 12(b)(6)). In determining

6 whether the pleading states a claim on which relief may be granted, its allegations of

7 material fact must be taken as true and construed in the light most favorable to

8 plaintiff. See, e.g., Soltysik v. Padilla, 910 F.3d 438, 444 (9th Cir. 2018). However,

9 the “tenet that a court must accept as true all of the allegations contained in a

10 complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678

11 (2009). Rather, a court first “discounts conclusory statements, which are not entitled

12 to the presumption of truth, before determining whether a claim is plausible.”

13 Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1129 (9th Cir. 2013); see also Chavez v.

14 United States, 683 F.3d 1102, 1108 (9th Cir. 2012).

15 Further, since plaintiff is appearing pro se, the Court must construe the

16 allegations of the pleadingliberally and must afford plaintiff the benefit of any doubt.

17 See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); see also Alvarez v. Hill, 518

18 F.3d 1152, 1158 (9th Cir. 2008) (because plaintiffwas proceeding pro se, “the district

19 court was required to ‘afford [him] the benefit of any doubt’ in ascertaining what

20 claims he ‘raised in his complaint’”) (alteration in original). Nevertheless, the

21 Supreme Court has held that “a plaintiff’s obligation to provide the ‘grounds’ of his

22 ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic

23 recitation of the elements of a cause of action will not do. . . . Factual allegations

24 must be enough to raise a right to relief above the speculative level . . . on the

25 assumption that all the allegations in the complaint are true (even if doubtful in fact).”

26 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted,

27 alteration in original); see also Iqbal, 556 U.S. at 678 (To avoid dismissal for failure

28 to state a claim, “a complaint must contain sufficient factual matter, accepted as true,

1 to ‘state a claim to relief that is plausible on its face.’ . . . A claim has facial

2 plausibility when the plaintiff pleads factual content that allows the court to draw the

3 reasonable inference that the defendant is liable for the misconduct alleged.” (internal

4 citation omitted)).

5 In addition, Fed. R. Civ. P. 8(a) (“Rule 8”) states:

6 A pleading that states a claim for relief must contain: (1) a

short and plain statement of the grounds for the court’s

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jurisdiction . . .; (2) a short and plain statement of the claim

8 showing that the pleader is entitled to relief; and (3) a

demand for the relief sought, which may include relief in

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the alternative or different types of relief.

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11 (Emphasis added). Further, Rule 8(d)(1) provides: “Each allegation must be simple,

12 concise, and direct. No technical form is required.” Although the Court must

13 construe a pro se plaintiff’s pleadings liberally, a plaintiff nonetheless must allege a

14 minimum factual and legal basis for each claim that is sufficient to give each

15 defendant fair notice of what plaintiff’s claims are and the grounds upon which they

16 rest. See, e.g., Brazil v. United States Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir.

17 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (a complaint must give

18 defendants fair notice of the claims against them). If a plaintiff fails to clearly and

19 concisely set forth factual allegations sufficient to provide defendants with notice of

20 which defendant is being sued on which theory and what relief is being sought against

21 them, the pleading fails to comply with Rule 8. See, e.g.,McHenry v. Renne, 84 F.3d

22 1172, 1177-79 (9th Cir. 1996); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671,

23 674 (9th Cir. 1981). A claim has “substantive plausibility” if a plaintiff alleges

24 “simply, concisely, and directly [the] events” that entitle him to damages. Johnson

25 v. City of Shelby, 574 U.S. 10, 12 (2014). Failure to comply with Rule 8 constitutes

26 an independent basis for dismissal of a pleading that applies even if the claims are

27 not found to be “wholly without merit.” See McHenry, 84 F.3d at 1179.

28 In addition, pursuant to Fed. R. Evid. 201(b)(2) & (c)(1), a Court may, on its

1 own motion, take judicial notice of matters of public record such as judicial

2 proceedings in an earlier action in this court. See, e.g., United States v. Brugnara,

3 856 F.3d 1198, 1209 (9th Cir. 2017) (a district court may properly take judicial notice

4 of the court’s own records under Fed. R. Evid. 201(b)); Rosales-Martinez v. Palmer,

5 753 F.3d 890, 894 (9th Cir. 2014) (“It is well established that we may take judicial

6 notice of judicial proceedings in other courts.”).

7 Following careful review of the Complaint, the Court finds that plaintiff’s

8 claims are insufficient to state a claim arising under federal law upon which relief

9 may be granted. Further, the pleading fails to comply with Rule 8 because it fails to

10 state a short and plain statement of each claim that is sufficient to give each defendant

11 fair notice of what plaintiff’s claims are and the grounds upon which they rest. In

12 addition, it appears to the Court that plaintiff is attempting to raise a claim for the

13 breach of a Settlement Agreement in case 16cv05672 over which this Court does not

14 have jurisdiction. For these reasons, the Complaint is dismissed with leave to amend.

15 See Rosati, 791 F.3d at 1039 (“A district court should not dismiss a pro se complaint

16 without leave to amend unless it is absolutely clear that the deficiencies of the

17 complaint could not be cured by amendment.”) (internal quotation marks omitted).

18 If plaintiff desires to pursue this action, he is ORDERED to file a First

19 Amended Complaint no later than thirty (30) days from the date of this Order,

20 remedying the deficiencies discussed herein. Further, plaintiff is admonished that,

21 if he fails to timely file a FirstAmended Complaintor fails to remedy the deficiencies

22 of this pleading, the Court will recommend that this action be dismissed without

23 further leave to amend and with prejudice for failure to state a claim and failure to

24 follow the Court’s orders.1

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1 Plaintiff is advised that this Court’s determination herein that the allegations in the Complaint

26 are insufficient to state a particular claim should not be seen as dispositive of that claim.

Accordingly, although this Court believes that you have failed to plead sufficient factual matter in

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your pleading, accepted as true, to state a claim to relief that is plausible on its face, you are not

28 required to omit any claim or defendant in order to pursue this action. However, if you decide to

1 A. Judicial Notice

2 The Court takes judicial notice that plaintiff filed a previous civil rights action,

3 case 16cv05672, on July 29, 2016, in the Central District of California against

4 defendants D. Asuncion, then Acting Warden of CSP-LAC; S. Kernan, then

5 Secretary of the CDCR; E. Lake, then Acting Community Resources Manager at

6 CSP-LAC; J. Lazar, Chaplain at CSP-LAC; B. Russell, then Acting Community

7 Resources Manager at CSP-LAC; D. Skaggs, then Community Resources Manager

8 of the CDCR; and J. Soto, former Warden of CSP-LAC. The parties resolved the

9 case and agreed to a voluntary dismissal with prejudice pursuant to a Stipulation

10 filed on June 7, 2018. (case 16cv05672, ECF No. 67.) On June 11, 2018, the District

11 Court dismissed the action in accordance with Rule 41(a)(1)(A)(ii), pursuant to the

12 stipulation of the parties, and with prejudice. (Id., ECF No. 68.) The Order of the

13 District Court specified that there was “no prevailing party in the action.” (Id.) No

14 further action in the case was taken by the District Court; an interlocutory appeal to

15 the Ninth Circuit filed by defendants was voluntarily dismissed on June 14, 2018.

16 (Id., ECF Nos. 41, 69.)

17 The Court also takes judicial notice of a motion filed by defendants in case

18 16cv05672 on November 3, 2017, in which defendants summarized that action as

19 plaintiff’s lawsuit against seven prison officials and employees at CSP-LAC in part:

20 “Plaintiff alleges that Defendants have substantially burdened his exercise of Native

21 American religion by relocating one of the prison’s sweat lodge sites onto a

22 recreation yard in order to accommodate the building of a new medical facility.” In

23 that action, plaintiff alleged that he had participated in Native American religious

24 ceremonies with other Native American inmates at CSP-LAC Facility A’s sweat

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Court, pursuant to the provisions of 28 U.S.C. §636, ultimately may submit to the assigned district

27 judge a recommendation that such claim be dismissed with prejudice for failure to state a claim,

subject to your right at that time to file Objections with the district judge as provided in the Local

28 Rules Governing Duties of Magistrate Judges.

1 lodge until approximately October 2014. After the sweat lodge was relocated in July

2 2015, plaintiff alleged that the new location was unsuitable for the ceremonies. (case

3 16cv05672, ECF No. 61 at 7-8;see alsoECF No. 64 at 9-10.) According to plaintiff’s

4 Complaint in case 16cv05672, plaintiff raised claims alleging violations of RLUIPA

5 arising from the defendants’ alleged failure to provide an acceptable location for the

6 religious ceremonies, the Free Exercise Clause of the First Amendment arising from

7 defendants Soto, Russell, and Lazar’s failure to provide an acceptable place for

8 plaintiff’s exercise of his religion, and a claim under the First Amendment alleging

9 retaliation arising from plaintiff’s exercise of his rights to speech and petition the

10 courts. (Id., ECF No. 2 at 17-18.)

11 B. Alleged breach of the Settlement Agreement in Case 16cv05672

12 Plaintiff’s Complaint in this action alleges that defendants “have breached the

13 settlement agreement” (ECF No. 1 at 8), and he purports to raise his Fourth Claim

14 for “Breach of Settlement Agreement” (id. at 30). Plaintiff references specific

15 provisions of a Settlement Agreement from case 16cv05672, and he alleges that

16 provisions of the “Operations Manual” of the CDCR required that defendants take

17 certain actions. (Id. at 8, 18, 30-31.) Plaintiff seeks to have this Court declare that

18 actions of “defendants” that allegedly continue to obstruct plaintiff’s religious

19 practices “are in breach of settlement agreement.” (Id.at 32.) Plaintiff did not attach

20 a copy of the Settlement Agreement from case 16cv05672 that he references herein

21 to his Complaint in this action.

22 The Court takes judicial notice of the official docket in case 16cv05672, which

23 does not reflect that a Settlement Agreement was filed with the court in that action.

24 Further, the “Stipulation of Voluntary Dismissal With Prejudice” in that action does

25 not reference any settlement agreement. (case 16cv05672, ECF No. 67.) The

26 stipulation in that case states that plaintiff and defendants “have resolved this case in

27 its entirely.” (Id.) The order dismissing the action with prejudice specifies that the

28 action was dismissed “pursuant to the stipulation of the parties” in accordance with

1 Fed. R. Civ. P. 41(a)(1)(A)(ii), and it does not reference any settlement agreement.

2 (Id., ECF No. 68.) Accordingly, the court records from case 16cv05672 of which the

3 Court has taken judicial notice reflect that any private settlement agreement entered

4 into by plaintiff and the defendants in case 16cv05672 was not incorporated into the

5 dismissal order in that action, nor is such settlement agreement subject to judicial

6 enforcement in that action.

7 In general, a “district court has the equitable power to enforce summarily an

8 agreement to settle a case pending before it.” Callie v. Near, 829 F.2d 888, 890 (9th

9 Cir. 1987). However, the Settlement Agreement alleged in plaintiff’s current

10 Complaint was not entered into in connection with the present case. Further,

11 plaintiff’s case 16cv05672 and this case both allege claims arising from prison

12 conditions, and 18 U.S.C. § 3626 governs “[p]rospective relief in any civil action

13 with respect to prison conditions.” As relevant herein, pursuant to 18 U.S.C.

14 § 3626(c)(2) and § 3626(g)(6), a private settlement agreement entered into by parties

15 to a lawsuit with respect to prison conditions is “not subject to court enforcement,”

16 and the parties may raise a claim that “a private settlement agreement has been

17 breached” in state court.

18 “Federal courts are courts of limited jurisdiction, possessing only that power

19 authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013)

20 (internal quotation marks omitted). “A federal court is presumed to lack jurisdiction

21 in a particular case unless the contrary affirmatively appears.” Stevedoring Servs. of

22 Am. Inc. v. Eggert, 953 F.2d 552, 554 (9th Cir. 1992). To the extent that plaintiff

23 intends to raise a separate claim herein that the Settlement Agreement that allegedly

24 resulted in the dismissal of case 16cv05672 was breached by any defendant in this

25 action, it is clear that the existence of an agreement that resulted in the dismissal of a

26 case in federal court does not give rise to federal jurisdiction in a subsequent federal

27 action. See, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 380-81

28 (1994) (an agreement that is part of the dismissal of a case in federal court “is not a

1 sufficient basis for a federal court’s jurisdiction”); Hajro v. United States Citizenship

2 & Immigration Servs., 811 F.3d 1086, 1099 (9th Cir. 2016) (a “district court does not

3 have the inherent power to enforce the terms of a settlement agreement under the

4 doctrine of ancillary jurisdiction”); Harry v. Perkins, 735 Fed. Appx. 296, 297 (9th

5 Cir. 2018) (an alleged breach of the terms of a private settlement agreement reached

6 inaprior action alleging a claim under RLUIPAagainst prison officials, absent more,

7 is not enforceable in federal court). Here, it appears from the court records of which

8 the Court has taken judicial notice that the dismissal stipulated to by the parties in

9 case 16cv05672 did not contain an explicit retention of federal jurisdiction and a

10 settlement agreement was not incorporated into the parties’ stipulation for dismissal

11 or the district court’s order dismissing that action. See, e.g., Kelly v. Wengler, 822

12 F.3d 1085, 1095 (9th Cir. 2016) (the stipulation for dismissal explicitly incorporated

13 the parties’ settlement agreement, the settlement agreement was attached as an

14 exhibit to the stipulation, and in the agreement “the parties agreed the district court

15 would retain ancillary jurisdiction to enforce the agreement”); Kokkonen, 511 U.S.

16 at 381; Kang v. Harrison, 789 Fed. Appx. 68, 69 (9th Cir. 2019) (where a district

17 court’s dismissal order contained an explicit provision retaining jurisdiction to

18 enforce a settlement agreement, the provision was sufficient to confer subject matter

19 jurisdiction upon thatdistrict court to enforce the parties’settlement agreement)(now

20 citable for its persuasive value pursuant to Ninth Circuit Rule 36-3). Because the

21 dismissal order in case 16cv05672 dismissed that action with prejudice without

22 retention of federal jurisdiction, federal jurisdiction over the parties’ dispute in that

23 action terminated upon its dismissal on June 11, 2018. (See case 16cv05672, ECF

24 No. 68.)

25 Accordingly, it appears that plaintiff’s allegations that the defendants in case

26 16cv05672 breached a Settlement Agreement in that action must be raised in state

27 court. See 18 U.S.C. § 3626(c)(2).

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1 C. Official Capacity Claims

2 Plaintiff names each defendant, all of whom appear to be officials or

3 employees of the CDCR, in his or her official capacity. (ECF No. 1 at 3-4, 10-12.)

4 Further, plaintiff appears to seek damages against all defendants. (Id. at 6, 32.)

5 The Eleventh Amendment bars federal jurisdiction over suits by individuals

6 against a State and its instrumentalities or agencies, unless either the State consents

7 to waive its sovereign immunity or Congress abrogates it. Pennhurst State Sch. &

8 Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984). In addition, “the eleventh

9 amendment bars actions against state officers sued in their official capacities for past

10 alleged misconduct involving a complainant’s federally protected rights, where the

11 nature of the relief sought is retroactive, i.e., money damages.” Bair v. Krug, 853

12 F.2d 672, 675 (9th Cir. 1988). To overcome this Eleventh Amendment bar, the

13 State’s consent or Congress’ intent must be “unequivocally expressed.” Pennhurst,

14 465 U.S. at 99. While California has consented to be sued in its own courts pursuant

15 to the California Tort Claims Act, such consent does not constitute consent to suit in

16 federal court. See BV Engineering v. Univ. of Calif., Los Angeles, 858 F.2d 1394,

17 1396 (9th Cir. 1988). Finally, Congress has not repealed state sovereign immunity

18 against suits brought under 42 U.S.C. § 1983.

19 Accordingly, plaintiff is barred by the Eleventh Amendment from seeking

20 damages from any employee of the CDCR in his or her official capacity.

21 D. Rule 8

22 The Court finds that plaintiff’s Complaint violatesRule 8 in thattheComplaint

23 fails to allege a minimum factual and legal basis for each claim that is sufficient to

24 give each defendant fair notice of what plaintiff’s claims are and which factual

25 allegations give rise to each claim.

26 First, the Complaint is confusing: it contains two caption pages, two lists of

27 defendants, two requests for relief, two signatures pages (with different dates); and

28 plaintiff repeats some general allegations in multiple places (e.g., plaintiff is a

1 “practitioner of traditional Native American religion and is an inmate leader of Native

2 American Sweat Lodge Ceremonies at the Facility ‘A’ yard at CSP-LAC” (ECF No.

3 1 at 8, 10, see also 13-15)). Additionally, the Complaint includes lengthy factual

4 allegations concerning Native American religious ceremonies and the history of such

5 ceremonies at CSP-LAC in general, and since October 2014 in particular (see id. at

6 8-9, 13-18, 20-21); a discussion of the Settlement Agreement in case 16cv05672 (id.

7 at 8-9, 18); and numerous unsupported and conclusory allegations concerning general

8 practices at CSP-LAC that fail to reference specific dates or defendants (see, e.g., id.

9 at 9, 19-21). None of these allegations is clearly relevant to the federal civil rights

10 claims that plaintiff appears to be raising in this action. Plaintiff’s extensive and

11 repetitive allegations concerning incidents that occurred on unspecified dates and

12 involve unspecified individuals renders it extremely difficult for the Court to discern

13 what factual allegations in the 32-page Complaint pertain to each of the three claims

14 arising under federal law that plaintiff alleges in this action against four defendants.

15 Moreover, in determining if the Complaint states a plausible claim on which relief

16 may be granted, the Court first discounts plaintiff’s conclusory statements, “which

17 are not entitled to the presumption of truth.” Salameh, 726 F.3d at 1129.

18 Further, plaintiff incorporates all of his allegations and prior claims into each

19 of his three federal claims, and he appears to be raising each claim against all named

20 defendants. (ECF No. 1 at 27-29.) The Complaint, however, names one defendant

21 who is not employed at plaintiff’s institution (CSP-LAC), as well as the Warden of

22 CSP-LAC. Plaintiff does not set forth any specific factual allegations concerning

23 Secretary Diaz or Warden Johnson.

24 In order to state a federal civil rights claim against a specific defendant,

25 plaintiff must allege that the defendant deprived him of a right guaranteed under the

26 United States Constitution or a federal statute, and that the “deprivation was

27 committed by a person acting under color of state law.” See West v. Atkins, 487 U.S.

28 42, 48 (1988). “A person deprives another ‘of a constitutional right, within the

1 meaning of section 1983, if he does an affirmative act, participates in another’s

2 affirmative acts, or omits to perform an act which he is legally required to do that

3 causes the deprivation of which [the plaintiff complains].’” Leer v. Murphy, 844

4 F.2d 628, 633 (9th Cir. 1988) (emphasis and alteration in original). Here, plaintiff’s

5 Complaint does not set forth factual allegations that each named defendant took an

6 affirmative act, participated in another’s affirmative act, or omitted to perform an act

7 that plaintiff alleges caused each of his three federal civil rights claims. Rather,

8 plaintiff includes only conclusory allegations such as that Warden Johnson “failed to

9 respect” plaintiff’s religious beliefs and “has sanctioned numerous policies that

10 burden [plaintiff’s] free exercise” of his religion. (ECF No. 1 at 11.)

11 In addition, plaintiff references various requirements of CDCR’s operations

12 manual and the California Penal Code. (Id. at 16, 18.) To the extent that plaintiff

13 may be attempting to allege a claim herein arising from a violation of state law or

14 prison regulations, a claim that arises under state law fails to allege a deprivation of

15 a federal constitutional right.

16 Further, plaintiff’s Complaint sets forth factual allegations concerning events

17 that began in 2014 and specifically includes allegations concerning “events starting

18 before the Settlement Agreement.” (ECF No. 1 at 16 (capitalization altered from

19 original).) Plaintiff’s Complaint, however,fails to clearly set forth factual allegations

20 concerning alleged actions taken by defendants or specific events that occurred after

21 the Settlement Agreement in case 16cv05672. As discussed above, plaintiff’s case

22 16cv05672 arose from similar alleged conduct by the then Secretary of the CDCR

23 and officials at CSP-LAC, including the former Warden at CSP-LAC and current

24 defendants Lazar and Lake. In his earlier case, plaintiff raised claims alleging

25 violations of RLUIPA arising from the defendants’ alleged failure to provide an

26 acceptable location for the sweat lodge in 2015 and pursuant to the Free Exercise

27 Clause of the First Amendment arising from defendants’ alleged failure to provide

28 an acceptable place for plaintiff’s exercise of his religion. (Seecase 16cv05672, ECF

1 No. 2 at 17-18.) That case was dismissed with prejudice as to plaintiff’s claims that

2 these defendants violated plaintiff’s right to free exercise of his religion and under

3 RLUIPA. Pursuant to plaintiff’s stipulation to dismiss his claims with prejudice in

4 case 16cv05672, plaintiff is prohibited from stating claims herein that arise from the

5 same factual allegations that already have been dismissed with prejudice in hisearlier

6 action in federal court. Accordingly, plaintiff’s factual allegations concerning events

7 that occurred prior to his voluntary dismissal with prejudice of case 16cv05672 in

8 June 2018 fail to give rise to any claims in this action on which relief may be granted.

9 In addition, plaintiff’s Complaint alleges a claim for “retaliation” in violation

10 of the First Amendment. (ECF No. 1 at 29.) Plaintiff alleges that unspecified

11 “[d]efendants retaliated against [plaintiff] for filing a lawsuit” and that “defendants

12 obstructed [plaintiff’s] attempts to exhaust the administrative remedies by rejecting

13 several rounds of grievances.” (Id.) Plaintiff also alleges that defendant Lake

14 retaliated against him by “arbitrarily instituting various policies that substantially

15 burden the exercise of [plaintiff’s] beliefs.” (Id. at 30.) Plaintiff does not specify

16 which policies he alleges Lake instituted in retaliation for what type of protected

17 conduct by plaintiff. Further, because plaintiff incorporates the first 75 paragraphs

18 of his Complaint into a claim for retaliation that he raises against all defendants (id.

19 at 29), it is difficult to discern which alleged adverse action by which defendant

20 plaintiff is purporting to allege was taken because of plaintiff’s protected conduct.

21 An action taken by a correctional officer in retaliation for the exercise of an inmate’s

22 First Amendment right is actionable under § 1983. See, e.g., Shepard v. Quillen, 840

23 F.3d 686, 688 (9th Cir. 2016); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).

24 Filing a grievance with prison officials is protected activity under the First

25 Amendment. See Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). However,

26 to state a claim under the First Amendment against a specific defendant, plaintiff

27 must set forth factual allegations showing that the defendant took adverse action

28 against plaintiff because of plaintiff’s protected conduct. Plaintiff alleges that

1 “defendants” retaliated for his lawsuit and grievances, by such actions as applying

2 “arbitrary policies” and refusing to allow plaintiff to apply for a prison position, but

3 plaintiff does not link any specific action by any defendant to a protected activity.

4 (See, e.g., ECF No. 1 at 9, 22-26.) Plaintiff’s “naked assertion[s]” of retaliatory

5 conduct are insufficient to allow each defendant to discern what facts apply to

6 plaintiff’s retaliation claim against each defendant. See, e.g., Iqbal, 556 U.S. at 678.

7 Finally, to the extent that plaintiff is purporting to allege a claim against

8 Warden Johnson arising from his role as “chief executive officer of CSP-LAC” (ECF

9 No. 1 at 11), supervisory personnel such as a warden are not liable under § 1983 on

10 a theory of respondeat superior. See, e.g., Iqbal, 556 U.S. at 676 (“Government

11 officials may not be held liable for the unconstitutional conduct of their subordinates

12 under a theory of respondeat superior”); Redman v. County of San Diego, 942 F.2d

13 1435, 1446 (9th Cir. 1991) (en banc). Plaintiff sets forth no specific facts to raise a

14 reasonable inference that Warden Johnson set “in motion a series of acts by others,”

15 or “knowingly refus[ed] to terminate a series of acts by others, which [the supervisor]

16 knew or reasonably should have known would cause others to inflict a constitutional

17 injury.” Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011). Accordingly, the

18 Complaint also violates Rule 8 because it fails to allege a minimum factual basis for

19 plaintiff’s claims against a supervisory defendant that is sufficient to give fair notice

20 to such defendant of the grounds upon which those claims rest.

21 Because it is not clear what actions each defendantis alleged to have taken that

22 caused any alleged deprivationof plaintiff’s federal civil rights that is alleged to have

23 occurred after the dismissal with prejudice of plaintiff’s case 16cv05672, the

24 Complaint fails to meet the minimal requirement of Rule 8 that a pleading allow each

25 defendant to discern what he or she is being sued for. See McHenry, 84 F.3d at 1177;

26 see also Twombly, 550 U.S. at 555 (“[f]actual allegations must be enough to raise a

27 right to relief above the speculative level”). The Court is mindful that, because

28 plaintiff is an inmate appearing pro se, the Court must construe the allegations of the

1 Complaint liberally and must afford plaintiff the benefit of any doubt. That said, the

2 Supreme Court has made clear that the Court has “no obligation to act as counsel or

3 paralegal to pro se litigants.” Pliler v. Ford, 542 U.S. 225, 231 (2004). In addition,

4 the Supreme Court has held that, while a plaintiff need not plead the legal basis for a

5 claim, the plaintiff must allege “simply, concisely, and directly events” that are

6 sufficient to inform the defendants of the factual grounds for each claim. Johnson,

7 135 S. Ct. at 347.

8 Accordingly, the Court finds that plaintiff’s Complaint violates Rule 8 because

9 it fails to set forth a simple, concise, and direct statement of the factual basis of each

10 of plaintiff’s federal civil rights claims against each defendant. If plaintiff wishes to

11 state any federal civil rights claim against any named defendant, plaintiff should set

12 forth each claim separately, stating his factual allegations for each claim against each

13 defendant under the standards set forth above.

14 ************

15 If plaintiff still desires to pursue this action, he is ORDERED to file a First

16 Amended Complaint no later than thirty (30) days after the date of this Order,

17 remedying the pleading deficiencies discussed above. The FirstAmended Complaint

18 should bear the docket number assigned in this case; be labeled “First Amended

19 Complaint”; and be complete in and of itself without reference to the original

20 Complaint, or any other pleading or document.

21 Plaintiff is admonished that, irrespective of his pro se status, if plaintiff wishes

22 to proceed with this action, then he must comply with the Federal Rules of Civil

23 Procedure and the Local Rules of the United States District Court for the Central

24 District of California. See, e.g., Briones v. Riviera Hotel & Casino, 116 F.3d 379,

25 382 (9th Cir. 1997) (“pro se litigants are not excused from following court rules”).

26 The clerk is directed to send plaintiff a blank Central District civil rights

27 complaint form, which plaintiff is encouraged to utilize.

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1 In addition, if plaintiff no longer wishes to pursue this action, then he may

2 || request a voluntary dismissal of the action pursuant to Federal Rule of Civil

3 || Procedure 41(a). The clerk also is directed to attach a Notice of Dismissal form for

4 || plaintiff’s convenience.

5 Plaintiff is further admonished that, if he fails to timely file a First

6 || Amended Complaint, or he fails to remedy the deficiencies of this pleading as

7 || discussed herein, then the Court will recommend that the action be dismissed

8 || with prejudice on the grounds set forth above and for failure to diligently

9 | prosecute.

10 IT IS SO ORDERED.

11

12 || DATED: 3/19/2020

13 (thy Wie

14 ALEXANDER F.MacKINNON

15 UNITED STATES MAGISTRATE JUDGE

16 || Attachment: Form CV-066

Form CV-009

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