Opinion

Kendall DeJuan Simon v. State of California

Court: District Court, C.D. California
Filed: Dec 22, 2021
Cited by: 0 cases
Authority: More cited than 18.0%

“Iqbal incorporated the Twombly pleading standard and Twombly did not 13 alter courts’ treatment of pro se filings; accordingly, we continue to construe pro se 14 filings liberally when evaluating them under Iqbal.”

How later courts described this case

“Iqbal incorporated the Twombly pleading standard and Twombly did not 13 alter courts’ treatment of pro se filings; accordingly, we continue to construe pro se 14 filings liberally when evaluating them under Iqbal.”
holding that INS detainee not 27 also facing criminal charges is not a “prisoner” under section 1915
denying plaintiff’s 20 claims for failing to satisfy Rule 8 where he failed to allege these elements as 21 instructed by the district court

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

KENDALL DEJUAN SIMON, Case No. 2:21-cv-6656-VAP (MAR)

Plaintiff, ORDER DISMISSING COMPLAINT

9 WITH LEAVE TO AMEND

STATE OF CALIFORNIA,

Defendant.

INTRODUCTION

On August 7, 2021, Kendall Dejuan Simon (“Plaintiff”) proceeding pro se,

constructively filed1 a Complaint (“Complaint”). ECF Docket No. (“Dkt.”) 1.

Plaintiff also filed a Request to Proceed to In Forma Pauperis (“IFP”), Dkt. 2, which

the Court instructed Plaintiff to amend. Dkt. 6. Plaintiff submitted a new Request to

Proceed IFP, Dkt. 9, which appears to suffer from the same deficiencies as his first

IFP Request. For the reasons discussed below, the Court denies Plaintiff’s second

IFP Request dismisses the Complaint with leave to amend.

If Plaintiff desires to pursue this action, he is ORDERED to respond by

no later than January 10, 2022, by choosing one of the three (3) options

discussed in Part V, below. If Plaintiff chooses to file an amended complaint,

he must also file a new Request to Proceed IFP. Further, Plaintiff is admonished

27 1 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail to

court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v.

1 that, if he fails to timely respond, the Court will recommend that this action be

2 dismissed without further leave to amend and with prejudice for failure to state a

3 claim and follow the Court’s orders.

4 II.

5 SUMMARY OF THE COMPLAINT

6 A. ALLEGATIONS

7 The Complaint lists a single defendant, State of California, and includes two

8 causes of action that appear to lump together several claims: (1) “kidnapping in the

9 form of an arrest – the rights to basic freedoms – double jeopardy” and (2) “Double

10 Jeopardy – false 911 report – stalking[.]” Dkt. 1 at 1, 3, 8. In the form Complaint,

11 Plaintiff also checks four (4) boxes identifying four (4) additional issues involved: (1)

12 disciplinary proceedings, (2) threat to safety, (3) access to the court, and (4) retaliation.

13 Dkt. 1 at 3.

14 Plaintiff lists the following supporting facts in support of his first cause of

15 action:

16 (a) Plaintiff was kidnapped by two (2) officers reeking of marijuana and liquor

17 in the form of an arrest;

18 (b) Plaintiff was stalked by two (2) males who got the 911 operator to issue a

19 warrant “out of [sic] air with no evidence or proof of crime;

20 (c) “Double jeopardy – charged with same crime twice in same area (Case #

21 ZM048107)”;

22 (d) “Foul play on arrest”; and

23 (e) “Didn’t tell truth on police report[.]”

24 Dkt. 1 at 3. Plaintiff alleges that he has “been institutionalized, forced to fight” and

25 received “no medical attention for back injury in jail while innocent of charges.” Id.

26 Plaintiff explains that the events underlying the first cause of action as follows:

[A]ll started about 4 years ago when [Plaintiff] first made [his] way

to Beverly Hills Blvd . . . [Plaintiff] was taken to jail from Beverly Hills

threats 1 vandalism . . . [Plaintiff] was then released to the custody of a

physciatric [sic] clinic that in return released [Plaintiff] from custody after

2 2 [illegible] days, then [Plaintiff] mistakenly returned to the shopping

center to walk to [Plaintiff’s] second bus to get [illegible] to home. When

[Plaintiff] walked past the coffee & TSA spa they came running out the

4 door to follow [Plaintiff].[2] . . . They then followed [Plaintiff] to the

elevator and established verably [sic] that they were armed with a knife

and small caliber hand gun they never pull them out so for feet [sic]

6 [Plaintiff] cant say they had a firearm but [Plaintiff] did see the knife so

[Plaintiff] took off walking away from their [illegible]. [Plaintiff] speed

walked to the grocery store to find safety [Plaintiff] was afraid for

8 [Plaintiff’s] life and the two males then stalked [Plaintiff] all the way to the

grocery store . . . After [Plaintiff] got there the security guard approached

[Plaintiff] to ask what’s wrong [Plaintiff] hold him there were two males

10 following [Plaintiff] with gun and knife. He informed [Plaintiff] that this

type of thing happens everyday [illegible] guys stalking handsome men

[sic] violations. He told [Plaintiff] to walk to a restaurant and walk in and

12 they would stop following [Plaintiff]. During this entire ordeal they were

on the phone with 911 fabricating an emergency to get a warrant issued

with no evidence . . . [W]ell two officers pulled up and detained [Plaintiff]

14 for having scissors then found no scissors then changed there [sic] story

to warrant for arrest . . . Then the two males [illegible]. [Plaintiff[ had just

got released on and called 911 and got them to charge [Plaintiff] with the

16 exact same crimes or criminal charges that [Plaintiff] was released on . . .

Again for a second time[.] They arrested [Plaintiff] and put [Plaintiff] in a

marijuana reeking squad [illegible] SUV. . . [Plaintiff] was then arrested for

18 3 agg assaults 3 criminal threats and 1 vandalism the exact same charges

[Plaintiff] had just been released on.

Dkt. 1 at 4-7.

As to the second cause of action, “Double Jeopardy – false 911 report –

stalking,” Plaintiff alleges:

(a) Plaintiff “was stalked by both 2 males on [Plaintiff’s] police report”;

(b) “Police Report reads no Miranda rights no evidence”

report.”

2 Plaintiff further alleges that the footage from the day of Plaintiff’s arrest will show that Plaintiff

1 Dkt. 1 at 8. Plaintiff also explains that he has suffered “mental anguish and 4 years of

2 mental treatment do [sic] to incarceration. Night tremors. Forced to fight for

3 survival.” Id.

4 B. RELIEF SOUGHT

5 Plaintiff is “seeking [Plaintiff’s] freedom and the basic reimbursement for time

6 lost in jail while innocent[.]” Dkt. 1 at 9. In addition, Plaintiff seeks “[r]elief for time

7 served while innocent with trial by judge as proof of innocence.” Id.

8 III.

9 STANDARD OF REVIEW

10 Where a plaintiff is incarcerated3 a court must screen the complaint under 28

11 U.S.C. § 1915A and is required to dismiss the case at any time if it concludes the

12 action is frivolous or malicious, fails to state a claim on which relief may be granted,

13 or seeks monetary relief against a defendant who is immune from such relief. 28

14 U.S.C. § 1915A; see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

15 Dismissal for failure to state a claim can be warranted based on either a lack of

16 a cognizable legal theory or the absence of factual support for a cognizable legal

17 theory. See, e.g., Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th

18 Cir. 2008). A complaint may also be dismissed for failure to state a claim if it

19 discloses some fact or complete defense that will necessarily defeat the claim.

20 Franklin v. Murphy, 745 F.2d 1221, 1228–29 (9th Cir. 1984), abrogated on other

21 grounds by Neitzke v. Williams, 490 U.S. 319 (1989). Although the plaintiff must

22 provide “more than labels and conclusions,” Bell Atl. Corp. v. Twombly, 550 U.S.

23 544, 555 (2007), “[s]pecific facts are not necessary; the [complaint] need only give the

24 defendant[s] fair notice of what the . . . claim is and the grounds upon which it rests.”

3 As the Court explained in its Order instructing Plaintiff to resubmit his IFP Request with

additional information, Plaintiff’s current confinement status is unclear. See Dkt. 6. Nonetheless,

1 Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (citations and quotation marks

2 omitted).

3 In considering whether a complaint states a claim, a court must accept as true

4 all of the material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892–93

5 (9th Cir. 2011). However, a court need not accept as true “allegations that are merely

6 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re

7 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). The court must also

8 construe the pleading in the light most favorable to the pleading party and resolve all

9 doubts in the pleader’s favor. See, e.g., Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir.

10 2005). Pro se pleadings are “to be liberally construed” and are held to a less stringent

11 standard than those drafted by a lawyer. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.

12 2010) (“Iqbal incorporated the Twombly pleading standard and Twombly did not

13 alter courts’ treatment of pro se filings; accordingly, we continue to construe pro se

14 filings liberally when evaluating them under Iqbal.”).

15 If a court finds the complaint should be dismissed for failure to state a claim, a

16 court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203

17 F.3d 1122, 1126–30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it

18 appears possible the defects in the complaint could be corrected, especially if the

19 plaintiff is pro se. Id. at 1130–31; see also Cato v. United States, 70 F.3d 1103, 1106

20 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot

21 be cured by amendment, a court may dismiss without leave to amend. Cato, 70 F.3d

22 at 1105, 1107–11.

23 ///

24 ///

25 ///

26 ///

27 ///

1 IV.

2 DISCUSSION

3 A. THE COMPLAINT FAILS TO STATE A CLAIM OR COMPLY WITH

4 RULE 8

5 1. Applicable law

6 Rule 8 requires a complaint contain “a short and plain statement of the claim

7 showing that the pleader is entitled to relief” and “a demand for the relief sought.”

8 Fed. R. Civ. P. 8. Rule 8(a) “requires a ‘showing,’ rather than a blanket assertion, of

9 entitlement to relief.” See Twombly, 550 U.S. at 555. “[T]he ‘short and plain

10 statement’ [required by Rule 8] must provide the defendant with ‘fair notice of what

11 the plaintiff’s claim is and the grounds upon which it rests.’” Dura Pharms., Inc. v.

12 Broudo, 544 U.S. 336, 346 (2005).

13 A court may dismiss a complaint because it is unintelligible or frivolous “where

14 it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

15 325 (1989). Further, Rule 8 requires that a complaint clearly establish the claims and

16 parties such that a defendant would have “no difficulty in responding to the claims

17 with an answer and/or with a Rule 12(b)(6) motion to dismiss.” Hearns v. San

18 Bernardino Police Dep’t, 530 F.3d 1124, 1131–32 (9th Cir. 2008); Conley v. Gibson,

19 355 U.S. 41, 47 (1957).

20 2. Analysis

21 Here, even construed liberally, the Complaint provides nothing that could be

22 construed as a cause of action or claim for relief. The caption of the Complaint only

23 names “State of California” as a defendant—though does not reference the “State of

24 California” anywhere in the body of the Complaint—and otherwise only refers to

25 individuals involved as the two (2) police officers or two (2) males. Dkt. at 4-8.

26 Likewise, Plaintiff does not cite any constitutional violations, or explain what actions

27 any specific defendant took that led to that constitutional violation. Without any

1 current state, no would-be defendants could identify any claims to respond to. Thus,

2 the Complaint fails to state any cognizable claim and is subject to dismissal for failure

3 to comply with Rule 8.

4 Ultimately, unclear pleadings, like the Complaint, that “leav[e] it to the Court to

5 figure out what the full array of [Plaintiff’s] claims is and upon what federal law, and

6 upon what facts, each claim is based,” are subject to dismissal. Little v. Baca, No. CV

7 13-0373-PA (RZ), 2013 WL 436018, at *3 (C.D. Cal. Feb. 1, 2013). Plaintiff’s

8 Complaint does not set forth a “short and plain statement” of his claims as to the

9 Defendants. Dura Pharms., Inc., 544 U.S. at 346. The Complaint fails to state any

10 cognizable claim and is therefore subject to dismissal for failure to comply with Rule

11 8. See McHenry, 84 F.3d at 1177. If Plaintiff chooses to file an amended complaint,

12 he must identify the legal and factual basis for each defendants’ alleged liability.

13 Therefore, in any amended complaint, Plaintiff should clearly state:

14 (1) Who each Defendant is;

15 (2) What each Defendant did to cause Plaintiff harm;

16 (3) When and where each Defendant committed the alleged acts;

17 (4) What federal constitutional right or statute each Defendant violated; and

18 (5) What harm resulted from each Defendant’s alleged acts.

19 See Tucker v. Stewart, 72 F. App’x 597, 598 (9th Cir. 2003) (denying plaintiff’s

20 claims for failing to satisfy Rule 8 where he failed to allege these elements as

21 instructed by the district court).

22 Irrespective of Plaintiff’s pro se status, if he wishes to proceed with this action,

23 he must comply with the Federal Rules of Civil Procedure and the Local Rules of the

24 United States District Court for the Central District of California (“L.R.”). See, e.g.,

25 Briones v. Riviera Hotel & Casino, 116 F.3d 379, 382 (9th Cir. 1997) (“pro se litigants

26 are not excused from following court rules”; L.R. 1-3 (“Persons appearing pro se are

27 bound by these rules, and any reference in these rules to ‘attorney’ or ‘counsel’ applies

1 B. PLAINTIFF FAILS TO STATE AN INADEQUATE MEDICAL CARE

2 CLAIM UNDER THE FOURTEENTH AMENDMENT

3 1. Applicable law

4 The Fourteenth Amendment governs claims for violations of the right to

5 adequate medical care brought by pretrial detainees. Gordon, 888 F.3d at 1124–25,

6 cert. denied sub nom. Cty. of Orange, Cal. v. Gordon, 139 S. Ct. 794 (2019). A claim

7 of denial of the right to adequate medical care under the Fourteenth Amendment is

8 analyzed under an objective deliberate indifference standard. Id. The elements of

9 such a claim are:

(i) the defendant made an intentional decision with respect to the

conditions under which the plaintiff was confined; (ii) those conditions

11 put the plaintiff at substantial risk of suffering serious harm; (iii) the

defendant did not take reasonable available measures to abate that risk,

even though a reasonable official in the circumstances would have

13 appreciated the high degree of risk involved—making the consequences

of the defendant’s conduct obvious; and (iv) by not taking such measures,

the defendant caused the plaintiff’s injuries.

Id.

“With respect to the third element, the defendant’s conduct must be objectively

unreasonable, a test that will necessarily ‘turn[ ] on the facts and circumstances of each

particular case.’” Id. (quoting Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1071 (9th

Cir. 2016)). The “‘mere lack of due care’” is insufficient. Id. (quoting Daniels v.

Williams, 474 U.S. 327, 330–31 (1986)). A plaintiff must “prove more than negligence

but less than subjective intent – something akin to reckless disregard.” Id.; Sarkiss v.

Duncan, No. CV 17-06866-VAP (DFM), 2017 WL 10562979, at *6 (C.D. Cal. Sept.

22, 2017) (“[A] claim of medical malpractice or mere negligence is insufficient to make

out a Fourteenth Amendment claim.”).

2. Analysis

Here, Plaintiff alleges he received “no medical attention for back injury

[Plaintiff] had in jail while innocent of charges” and that he has suffered “mental

1 appears Plaintiff has alleged both that he has not received treatment for injuries but

2 that he has also been injured by the “mental treatment” that he did receive. Plaintiff,

3 however, does not explain how he was injured by the medical care he received (or lack

4 thereof), or how his original injuries were exacerbated by any would-be defendants’

5 decisions regarding Plaintiff’s medical care. Furthermore, Plaintiff has not alleged any

6 facts about defendants’ conduct that could show the defendants acted with more than

7 a “something akin to reckless disregard—i.e., with something more than negligence.”

8 Gordon, 888 F.3d at 1124–25. As noted above, any amended complaint should

9 include these additional details, if possible, and clearly restate relevant information

10 from the Complaint.

11 C. THE COMPLAINT APPEARS HECK BARRED AND SUBJECT TO

12 DISMISSAL

13 1. Applicable law

14 A petition for a writ of habeas corpus “is the exclusive remedy for a state

15 prisoner who challenges the fact or duration of his confinement.” Heck v.

16 Humphrey, 512 U.S. 477, 481 (1994). “[A] state prisoner’s § 1983 action is barred” if

17 “success in that action would necessarily demonstrate the invalidity of confinement or

18 its duration,” except where the prisoner’s conviction has already been invalidated.

19 Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005).

20 2. Analysis

21 Here, Plaintiff—in addition to the Fourteenth Amendment claim regarding

22 inadequate medical care—alleges facts that may be construed as wrongful arrest, and

23 therefore appears to challenge the validity of his conviction, as opposed to the

24 conditions of his confinement. See Dkt. 1. Indeed, in addition to reimbursement for

25 time served, Plaintiff seeks his release from custody. Id. at 9. Success on Plaintiff’s

26 challenges to the arrest that led to his conviction would necessarily invalidate

27 Plaintiff’s conviction. Plaintiff has not shown his conviction has already been

2 V.

3 REQUEST TO PROCEED IFP

4 A. APPLICABLE LAW

5 All parties instituting any civil action, suit or proceeding in a district court of

6 the United States, except an application for writ of habeas corpus, must pay a filing

7 fee. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to

8 prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to

9 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

10 However, “[u]nlike other indigent litigants, prisoners proceeding IFP must pay the full

11 amount of filing fees in civil actions and appeals pursuant to the PLRA [Prison

12 Litigation Reform Act].” Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002).

13 The filing fee provisions of 28 U.S.C. § 1915(b) do not apply where the plaintiff

14 was not a “prisoner” as defined by 28 U.S.C. § 1915(h) the time the action was filed.

15 Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005); Page v. Torrey, 201 F.3d 1136,

16 1140 (9th Cir. 2000) (“we hold that . . . the PLRA’s requirement that prisoner

17 plaintiffs seeking to proceed in forma pauperis must provide copies of prisoner trust

18 fund account statements” does not apply where plaintiff is detained not for his

19 criminal conviction, “but rather a civil commitment for non-punitive purposes.”

20 (emphasis added)).

21 For purposes of the PLRA, a “prisoner” is “any person incarcerated or

22 detained in any facility who is accused of, convicted of, sentenced for, or adjudicated

23 delinquent for, violations of criminal law or the terms and conditions of parole,

24 probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h). A “civil

25 detainee” on the other hand, is not a “prisoner” within the meaning of the PLRA.

26 Andrews, 398 F.3d at 1122; Agyeman, 296 F.3d at 886 (holding that INS detainee not

27 also facing criminal charges is not a “prisoner” under section 1915).

1 B. ANALYSIS

2 On August 7, 2021, Plaintiff constructively filed a Motion to Proceed IFP.

3 Dkt. 2. The Court issued an Order instructing Plaintiff to resubmit his Motion to

4 Proceed IFP because the Motion lacked certain information necessary to decide on

5 the Motion. Dkt. 6. On December 1, 2021, Plaintiff submitted a Motion to Proceed

6 IFP that appears to be a copy of his first Motion. Dkt. 9. Thus, Plaintiff has failed to

7 comply with the Court’s instructions regarding proceeding IFP.

8 Plaintiff states that he was “released on charges” but that he now sits “5 years

9 later still institutionalized for crimes [he] went to trial by judge [sic] and was found

10 innocent on all charges [sic].” Dkt. 1 at 7. However, he provides no additional

11 information to allow the Court to understand and verify his current status and

12 whether he qualifies as a “prisoner” under the PLRA.

13 Thus, if Plaintiff is either presently detained awaiting trial, or if he was already

14 convicted, sentenced, and is presently detained pursuant to his conviction and

15 sentence, then Plaintiff will need to submit a new Form CV-73P that includes his trust

16 account statements. If, on the other hand, Plaintiff’s present detention is pursuant to

17 a civil commitment, then the Court will consider Plaintiff’s current IFP Motion, Dkt.

18 2.

19 Accordingly, Plaintiff must reply to this Order with one the three (3) options

20 listed below, which should also address his current detention status and whether he

21 qualifies as a “prisoner” pursuant to the PLRA. Plaintiff must also file a new Form

22 CV-60P and include his trust account information. The Clerk of Court is

23 instructed to include a new Form CV-60P for Plaintiff’s convenience.

24 VI.

25 LEAVE TO FILE AN AMENDED COMPLAINT

26 For the foregoing reasons, the Complaint is subject to dismissal. As the Court

27 is unable to determine whether amendment would be futile, leave to amend is granted.

1 Accordingly, IT IS ORDERED THAT by January 10, 2022, Plaintiff must

2 choose one (1) of the following three (3) options:

3 1. Plaintiff may file an Amended Complaint to attempt to cure the deficiencies

4 discussed above. The Clerk of Court is instructed to mail Plaintiff a blank

5 Central District civil rights complaint form to use for filing an Amended

6 Complaint, which the Court encourages Plaintiff to use. The Clerk of Court is

7 also directed to mail Plaintiff a copy of his Complaint, Dkt. 1, for his reference.

8 If Plaintiff chooses to file an Amended Complaint, Plaintiff is advised that

9 doing so would entirely replace the Complaint in this action. In addition, any

10 Amended Complaint must:

11 (a) be labeled “First Amended Complaint”;

12 (b) be complete in and of itself and not refer in any manner to prior

13 complaints, i.e., it must include all of the claims on which Plaintiff seeks to

14 proceed, (see Local Rule 15-2);

15 (c) contain a “short plain” statement of the claim(s) for relief, see Fed. R. Civ.

16 P. 8(a) and identify whether Plaintiff is suing Defendants in their individual

17 or official capacity;

18 (d) make each allegation “simple, concise and direct,” Fed. R. Civ. P. 8(d)(1);

19 (e) make allegations in numbered paragraphs, “each limited as far as practicable

20 to a single set of circumstances,” Fed. R. Civ. P. 10(b);

21 (f) set forth clearly the sequence of events (including specific relevant dates)

22 which allegedly gives rise to the claim(s) for relief, including what each

23 defendant did and how each specific defendant’s conduct injured plaintiff;

24 and

25 (g) not add defendants or claims without leave of court.

26 2. Alternatively, Plaintiff may file a notice with the Court that he intends to

27 stand on the allegations in his Complaint. If Plaintiff chooses to stand on the

1 | submit a recommendation to the assigned district judge that the Complaint be

2 | dismissed with prejudice for failure to state a claim, subject to Plaintiffs right at

3 | that time to file Objections with the district judge as provided in the Local Rules

4 | Governing Duties of Magistrate Judges.

5 3. Finally, Plaintiff may voluntarily dismiss the action without prejudice,

6 | pursuant to Federal Rule of Civil Procedure □□ (a). ‘The Clerk of Court is directed

7 | to mail Plaintiff a blank Notice of Dismissal Form, which the Court

8 | encourages Plaintiff to use if they choose to voluntarily dismiss the action.

9 Plaintiff is explicitly cautioned that failure to timely file an Amended

10 | Complaint will result in this action being dismissed with prejudice for failure

11 | to state a claim, or for failure to prosecute and/or obey Court orders pursuant

12 | to Federal Rule of Civil Procedure 41(b).

14 | Dated: December 22, 2021 □□ =

15 HONORABLE MARGO A. ROCCONI

16 United States Magistrate Judge

MA70212¢9 Ken DET TMG

Name and Prisonet/Booking Number : is ( 2 te VED

Place of Confinement Hip 9

(Hor mtomeeatO Pye AUS Le 2021 FE L E

Mailing Address .

CLERK, U.S. DISTRICT ¢ DH

Nolw ay CA, {0 690 _ EASTERN DISTRICT OF CALIFORNIA

Peds, BY QY DEPUTY ciecreis

(Failure to notify the Court of your change of address may result in dismissal of this. action.) AUG 1p 2024

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IN THE UNITED STATES DISTRICT COURT regalo

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K eon DESUAN SIMON 5

(Full Name of Plaintiff) Plaintiff, ) ALOE WO) SPUREPD

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STATE □□ CALCEGENIA )

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) CIVIL RIGHTS COMPLAINT

(3) ») BY APRISONER

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(4) 5) Moriginal Complaint

Defendant(s). ) OFirst Amended Complaint

[check if there are additional Defendants and attach page J-A listing them. ) Ol Second Amended Complaint

A. JURISDICTION

1. This Court has jurisdiction over this action pursuant to:

[] 28 U.S.C. § 1343(a); 42 U.S.C. § 1983

L] 28 U.S.C. § 1331; Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

(} Other: .

2. Institution/city where violation occurred: ( LA ) | .

Revised 3/15/2016 .

B. DEFENDANTS

1. Name of first Defendant: Ke A411 □□□ SIMON _. The first Defendant is employed as:

Medicol\ “G bs Peck, Zt at

(Position and Title) (Institution)

2. Name of second Defendant: . The second Defendant is employed as:

at. :

(Position and Title) (Institution)

3. Name of third Defendant: . The third Defendant is employed as:

(Position and Title) (Institution)

4. Name of fourth Defendant: . The fourth Defendant is employed as:

(Position and Title) (Institution)

If you name more than four Defendants, answer the questions listed above for each additional Defendant on a separate page.

C. PREVIOUS LAWSUITS

1. Have you filed any other lawsuits while you were a prisoner? [] Yes Aro

2. Ifyes, how many lawsuits have you filed? . Describe the previous lawsuits:

a. First prior lawsuit:

1. Parties: eA) AU ODdANTEMN v. STATE WE CAL) FoCNIA □ LAP

2. Court and case number: _ ZMOYC1O7 - BAU EZS 24

3. Result: (Was the case dismissed? Was it appealed? Is it still pending?) Peaol in

b. Second prior lawsuit:

1. Parties: v.

2. Court and case number:

3. Result: (Was the case dismissed? Was it appealed? Is it still pending?)

□

c. Third prior lawsuit:

1. Parties: v.

2. Court and case number: .

3. Result: (Was the case dismissed? Was it appealed? Is it still pending?)

If you filed more than three lawsuits, answer the questions listed above for each additional lawsuit on a separate page.

D. CAUSE OF ACTION

CLAIM I

1. State the constitutional or other federal civil right that was violated: Kid napac WN

ob AN AQWEST- TE MiwdTs To Gtsin, PDMS ae ait a

2. Claim I. Identify the issue involved. Check only one. 7 additional issues in separate claims,

(1,Basic necessities CJ Mail Access to the court Medica care

Disciplinary proceedings fener LC] Exercise of religion Retaliation

C] Excessive force by an officer Threat to safety [] Other: .

3. Supporting Facts. State as briefly as possible the FACTS supporting Claim I. Describe exactly what each

Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal

authority or arguments.

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4. Injury. State how you were injured by the actions or inactions of the Defendant(s).

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cit) | PACE □□□ =e Noce SST Oy 442

5. Administrative Remedies:

a. Are there any administrative remedies (grievance procedures or administrative appeals) available □□

institution? a No

b. Did you submit a request for administrative relief on Claim I? wee □□□ No

c. Did you appeal your request for relief on Claim I to the highest level? Yes □□ □□

d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you

did not.

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CLAIM II

1. State the NOTE ee other federal civil right that was violated: DouGte TC¢ MOA □

PEASE Qi} Leotts CcTAUGNLe □

2. Claim II. Identify the issue involved. Check only one. State additional issues in separate claims.

Basic necessities EMail L] Access to the court (] Medical care

_] Disciplinary proceedings L] Property Exercise of religion L] Retaliation

3. Supporting Facts. State as briefly as possible the FACTS supporting Claim II. Describe exactly what each

Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal

authority or arguments.

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4. Injury. State how you were injured by the actions or inactions of the Defendant(s).

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5. Administrative Remedies. □

a. Arethere any administrative remedies (grievance procedures or administrative appeals) soe at your

institution? yés LINo

b. Did you submit a request for administrative relief on Claim II? Yes □□ No

c. Did you appeal your request for relief on Claim II to the highest level? hes L] No

d. Ifyou did not submit or appeal a request for administrative relief at any level, briefly explain why you

did not.

□

CLAIM HI

1. State the constitutional or other federal civil right that was violated:

2. Claim II. Identify the issue involved. Check only one. State additional issues in separate claims.

C1 Basic necessities L] Mail L_] Access to the court L) Medical care

Disciplinary proceedings Property L] Exercise of religion L} Retaliation

C Excessive force by an officer [1 Threat to safety L] Other:

3. Supporting Facts. State as briefly as possible the FACTS supporting Claim III. Describe exactly what each

Defendant did or did not do that violated your rights. State the facts clearly in your own words without citing legal

authority or arguments.

□

4. Injury. State how you were injured by the actions or inactions of the Defendant(s).

□

5. Administrative Remedies.

a. Arethere any administrative remedies (grievance procedures or administrative appeals) available at your

institution? [C1 Yes

b. Did you submit a request for administrative relief on Claim III? [Yes □□ □□

c. Did you appeal your request for relief on Claim III to the highest level? C1 Yes □□ □□

d. If you did not submit or appeal a request for administrative relief at any level, briefly explain why you

did not.

If you more than three Claims, answer the questions listed above for each additional Claim on a separate page.

E. REQUEST FOR RELIEF

State the relief you are seeking: ,

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I declare under penalty of perjury that the foregoing is true and correct.

Executed on Avg * sk - □□□ □

DATE SIGNATURE OF PLAINTIFF

(Name and title of paralegal, legal assistant, or

other person who helped prepare this complaint)

(Signature of attorney, if any)

(Attorney’s address & telephone number)

ADDITIONAL PAGES

All questions must be answered concisely in the proper space on the form. If you need more space you may attach

more pages, but you are strongly encouraged to limit your complaint to twenty-five pages. If you attach

additional pages, be sure to identify which section of the complaint is being continued and number all pages.

Remember, there is no need to attach exhibits to your complaint.

. 6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NUMBER

Plaintiff(s),

NOTICE OF DISMISSAL PURSUANT

TO FEDERAL RULES OF CIVIL

PROCEDURE 41(a) or (c)

Defendant(s).

PLEASE TAKE NOTICE: (Check one)

G This action is dismissed by the Plaintiff(s) in its entirety.

G The Counterclaim brought by Claimant(s) is

dismissed by Claimant(s) in its entirety.

G The Cross-Claim brought by Claimants(s) is

dismissed by the Claimant(s) in its entirety.

G The Third-party Claim brought by Claimant(s) is

dismissed by the Claimant(s) in its entirety.

G ONLY Defendant(s)

is/are dismissed from (check one)G Complaint, G Counterclaim, G Cross-claim, G Third-Party Claim

brought by .

The dismissal is made pursuant to F.R.Civ.P. 41(a) or (c).

Date Signature of Attorney/Party

NOTE: F.R.Civ.P. 41(a): This notice may be filed at any time before service by the adverse party of an answer or of a motion for

summary judgment, whichever first occurs.

F.R.Civ.P. 41(c): Counterclaims, cross-claims & third-party claims may be dismissed before service of a responsive

COMMITTED NAME (if different)

FULL ADDRESS INCLUDING NAME OF INSTITUTION

PRISON NUMBER (if applicable)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NUMBER

To be supplied by the Clerk

PLAINTIFF,

v. CIVIL RIGHTS COMPLAINT

PURSUANT TO (Check one)

G 42 U.S.C. § 1983

DEFENDANT(S). G Bivens v. Six Unknown Agents 403 U.S. 388 (1971)

A. PREVIOUS LAWSUITS

1. Have you brought any other lawsuits in a federal court while a prisoner: G Yes G No

2. If your answer to “1.” is yes, how many?

Describe the lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on an

attached piece of paper using the same outline.)

Defendants

b. Court

c. Docket or case number

d. Name of judge to whom case was assigned

e. Disposition (For example: Was the case dismissed? If so, what was the basis for dismissal? Was it

appealed? Is it still pending?)

f. Issues raised:

g. Approximate date of filing lawsuit:

h. Approximate date of disposition

B. EXHAUSTION OF ADMINISTRATIVE REMEDIES

1. Is there a grievance procedure available at the institution where the events relating to your current complaint

occurred? G Yes G No

2. Have you filed a grievance concerning the facts relating to your current complaint? G Yes G No

If your answer is no, explain why not

3. Is the grievance procedure completed? G Yes G No

If your answer is no, explain why not

4. Please attach copies of papers related to the grievance procedure.

C. JURISDICTION

This complaint alleges that the civil rights of plaintiff

(print plaintiff's name)

who presently resides at ,

(mailing address or place of confinement)

were violated by the actions of the defendant(s) named below, which actions were directed against plaintiff at

(Claim I) (Claim II) (Claim III)

NOTE: You need not name more than one defendant or allege more than one claim. If you are naming more than

five (5) defendants, make a copy of this page to provide the information for additional defendants.

1. Defendant resides or works at

(full name of first defendant)

(full address of first defendant)

(defendant's position and title, if any)