(PC) Rivas v. Padilla

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 DANIEL J. RIVAS, 1:21-cv-00212-GSA-PC

12 Plaintiff, SCREENING ORDER

13 vs. ORDER DISMISSING COMPLAINT FOR

VIOLATION OF RULE 8(a), WITH

14 PADILLA et al., LEAVE TO FILE AN AMENDED

COMPLAINT NOT EXCEEDING 25

15 Defendants. PAGES

16 THIRTY-DAY DEADLINE

17 ORDER FOR CLERK TO SEND

PLAINTIFF A CIVIL COMPLAINT

18 FORM

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21 I. BACKGROUND

22 Daniel J. Rivas (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

23 action pursuant to 42 U.S.C. § 1983. On February 19, 2021, Plaintiff filed the Complaint

24 commencing this action, which is now before the court for screening. 28 U.S.C. § 1915A. (ECF

25 No. 1.)

26 II. SCREENING REQUIREMENT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

16 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal

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

18 plausibility standard. Id.

19 III. PLAINTIFF’S COMPLAINT

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

21 and State Prison (“SATF”) in Corcoran, California, where the events at issue in the Complaint

22 allegedly occurred. Plaintiff names as defendants Correctional Officer (C/O) Padilla, C/O Clark,

23 and Does #1-#6 (collectively, “Defendants”), who were all employed at SATF during the relevant

24 time period.

25 The gravamen of Plaintiff’s Complaint is that some SATF Correctional Officers retaliated

26 against him for filing a civil case at this court against other SATF Correctional Officers.

27 Plaintiff requests monetary damages, including punitive damages, costs of suit, injunctive

28 relief, and reasonable attorney fees.

1 Rule 8(a) of The Federal Rules Of Civil Procedure

2 Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

3 exceptions, none of which apply to § 1983 actions. Swierkiewicz v. Sorema, N.A., 534 U.S. 506,

4 512 (2002). Under federal notice pleading, a complaint is required to contain “a short and plain

5 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2).

6 “Such a statement must simply give defendant fair notice of what the plaintiff’s claim is and the

7 grounds upon which it rests.” Id. The federal rules contemplate brevity. See Galbraith v. County

8 of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have

9 now disapproved any heightened pleading standard in cases other than those governed by Rule

10 9(b)”); Fed. R. Civ. P. 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading).

11 Rule 8 requires Plaintiff to set forth his claims in short and plain terms, simply, concisely and

12 directly. See Swierkiewicz, 534 U.S. at 514 (“Rule 8(a) is the starting point of a simplified

13 pleading system, which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ.

14 P. 8. The Court (and each defendant) should be able to read and understand Plaintiff’s pleading

15 within minutes. McHenry v. Renne, 84 F.3d 1172, 1179–80 (9th Cir. 1996).

16 Plaintiff’s Complaint fails to comport with Rule 8(a)’s requirement for “a short and plain

17 statement of the claim showing that the pleader is entitled to relief.” Plaintiff’s Complaint is 35

18 pages in length and contains 68 numbered paragraphs and a declaration by Plaintiff. (ECF No.

19 1.) Plaintiff’s lengthy narrative does not clearly or succinctly allege facts against the named

20 defendants. The court will dismiss the Complaint and grant Plaintiff leave to file a First Amended

21 Complaint not exceeding 25 pages. The total number of pages, including the form complaint and

22 any exhibits, must not exceed 25 pages. If typewritten, the body of the First Amended Complaint

23 must be double-spaced. If handwritten, the Complaint must be legible and written in reasonably-

24 sized handwriting. If Plaintiff fails to comport with these requirements, the First Amended

25 Complaint may be dismissed or stricken from the record for failure to comply with the court’s

26 order. Plaintiff should not include legal analysis in the First Amended Complaint, and he is not

27 required to include information about exhaustion of administrative remedies.

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1 In the following paragraphs, the court shall set forth the legal standards that appear to

2 address Plaintiff’s claims. Plaintiff is advised to review the legal standards before deciding what

3 to include in the amended complaint.

4 IV. PLAINTIFF’S CLAIMS

5 A. 42 U.S.C. § 1983

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

7 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

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

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

9 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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11 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely

12 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490

13 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also

14 Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles,

15 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012);

16 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).

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

18 under color of state law and (2) the defendant deprived him of rights secured by the Constitution

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

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

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

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

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

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

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

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

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

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

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

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

3 1026 (9th Cir. 2008).

4 B. Retaliation – First Amendment Claim

5 As discussed by the Ninth Circuit in Watison v. Carter:

6 “A retaliation claim has five elements. Brodheim v. Cry, 584 F.3d 1262,

7 1269 (9th Cir. 2009). First, the plaintiff must allege that the retaliated-against

8 conduct is protected. The filing of an inmate grievance is protected conduct.

9 Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005).

10 Second, the plaintiff must claim the defendant took adverse action against

11 the plaintiff. Id. at 567. The adverse action need not be an independent

12 constitutional violation. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).

13 “[T]he mere threat of harm can be an adverse action....” Brodheim, 584 F.3d at

14 1270.

15 Third, the plaintiff must allege a causal connection between the adverse

16 action and the protected conduct. Because direct evidence of retaliatory intent

17 rarely can be pleaded in a complaint, allegation of a chronology of events from

18 which retaliation can be inferred is sufficient to survive dismissal. See Pratt, 65

19 F.3d at 808 (“timing can properly be considered as circumstantial evidence of

20 retaliatory intent”); Murphy v. Lane, 833 F.2d 106, 108–09 (7th Cir. 1987).

21 Fourth, the plaintiff must allege that the “official's acts would chill or

22 silence a person of ordinary firmness from future First Amendment activities.”

23 Robinson, 408 F.3d at 568 (internal quotation marks and emphasis omitted). “[A]

24 plaintiff who fails to allege a chilling effect may still state a claim if he alleges he

25 suffered some other harm,” Brodheim, 584 F.3d at 1269, that is “more than

26 minimal,” Robinson, 408 F.3d at 568 n.11. That the retaliatory conduct did not

27 chill the plaintiff from suing the alleged retaliator does not defeat the retaliation

28 claim at the motion to dismiss stage. Id. at 569.

1 Fifth, the plaintiff must allege “that the prison authorities' retaliatory

2 action did not advance legitimate goals of the correctional institution....” Rizzo

3 v. Dawson, 778 F.2d 527, 532 (9th Cir.1985). A plaintiff successfully pleads this

4 element by alleging, in addition to a retaliatory motive, that the defendant's actions

5 were arbitrary and capricious, id., or that they were “unnecessary to the

6 maintenance of order in the institution,” Franklin v. Murphy, 745 F.2d 1221, 1230

7 (9th Cir.1984).”

8 Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012).

9 C. Excessive Force – Eighth Amendment Violation

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

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

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

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

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

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

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

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

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

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

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

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

22 and citations omitted).

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

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

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

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

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

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

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

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

3 inquiry, but does not end it.” Id.

4 D. Confiscation of Personal Property

5 Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d

6 728, 730 (9th Cir. 1974). However, a plaintiff has no due process claim based on the defendants’

7 unauthorized deprivation of his personal property—whether intentional or negligent—if a

8 meaningful state post-deprivation remedy for his loss is available. See Hudson, 468 U.S. at 533.

9 California’s tort claim process provides that adequate post-deprivation remedy. Barnett v.

10 Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 810–895) (“[A]

11 negligent or intentional deprivation of a prisoner’s property fails to state a claim under section

12 1983 if the state has an adequate post deprivation remedy.”); see also Teahan v. Wilhelm, 481 F.

13 Supp. 2d 1115, 1120 (S.D. Cal. 2007); Kemp v. Skolnik, No. 2:09-CV-02002-PMP, 2012 WL

14 366946, at *6 (D. Nev. Feb. 3, 2012) (finding prisoner’s alleged loss or destruction of newspaper,

15 magazines, and books failed to state a Fourteenth Amendment claim pursuant to Hudson and

16 noting that “[i]f Plaintiff wishes to recoup the value of the alleged lost materials, he will have to

17 file a claim in small claims court in state court.”).

18 E. Due Process – Fourteenth Amendment

19 The Due Process Clause protects against the deprivation of liberty without due process

20 of law. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 2393 (2005). In order to invoke

21 the protection of the Due Process Clause, a plaintiff must first establish the existence of a liberty

22 interest for which the protection is sought. Id. Liberty interests may arise from the Due Process

23 Clause itself or from state law. Id.

24 Under state law, the existence of a liberty interest created by prison regulations is

25 determined by focusing on the nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481-

26 84, 115 S.Ct. 2293 (1995). Liberty interests created by state law are “generally limited to

27 freedom from restraint which . . . imposes atypical and significant hardship on the inmate in

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1 relation to the ordinary incidents of prison life.” Id. at 484; Myron v. Terhune, 476 F.3d 716,

2 718 (9th Cir. 2007).

3 Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply

4 of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell 418 U.S.

5 539, 556 (1974). With respect to prison disciplinary proceedings, the minimum procedural

6 requirements that must be met are: (1) written notice of the charges; (2) at least 24 hours between

7 the time the prisoner receives written notice and the time of the hearing, so that the prisoner may

8 prepare his defense; (3) a written statement by the fact finders of the evidence they rely on and

9 reasons for taking disciplinary action; (4) the right of the prisoner to call witnesses in his defense,

10 when permitting him to do so would not be unduly hazardous to institutional safety or

11 correctional goals; and (5) legal assistance to the prisoner where the prisoner is illiterate or the

12 issues presented are legally complex. Id. at 563–71. In addition “[s]ome evidence” must support

13 the decision of the hearing officer. Superintendent v. Hill, 472 U.S. 445, 455 (1985). The standard

14 is not particularly stringent and the relevant inquiry is whether “there is any evidence in the record

15 that could support the conclusion reached . . . .” Id. at 455–56.

16 F. Verbal Threats and Harassment

17 Verbal harassment or abuse alone is not sufficient to state a claim under section 1983,

18 Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987), and threats do not rise to the level

19 of a constitutional violation, Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987).

20 G. Doe Defendants

21 Unidentified, or “John Doe” defendants must be named or otherwise identified before

22 service can go forward. “As a general rule, the use of ‘John Doe’ to identify a defendant is not

23 favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Plaintiff is advised that John

24 Doe or Jane Doe defendants cannot be served until Plaintiff has identified them as actual

25 individuals and amended his complaint to substitute names for John Doe or Jane Doe. For service

26 to be successful, the Marshal must be able to identify and locate defendants.

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1 V. CONCLUSION AND ORDER

2 The court finds that Plaintiff’s Complaint violates Rule 8(a) of the Federal Rules of Civil

3 Procedure. The court will dismiss the Complaint and grant Plaintiff leave to file a First Amended

4 Complaint not exceeding 25 pages. The total number of pages, including the form complaint and

5 any exhibits, must not exceed 25 pages. If typewritten, the body of the First Amended Complaint

6 must be double-spaced. If handwritten, the Complaint must be legible and written in reasonably-

7 sized handwriting. If Plaintiff fails to comport with these requirements, the First Amended

8 Complaint may be dismissed or stricken from the record for failure to comply with the court’s

9 order.

10 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give

11 leave to amend when justice so requires.” Accordingly, the court will provide Plaintiff an

12 opportunity to file an amended complaint not exceeding 25 pages. Lopez v. Smith, 203 F.3d

13 1122, 1126-30 (9th Cir. 2000). Plaintiff is granted leave to file the First Amended Complaint

14 within thirty days.

15 The First Amended Complaint must allege facts showing what each named defendant did

16 that led to the deprivation of Plaintiff’s constitutional rights. Fed. R. Civ. P. 8(a); Iqbal, 556 U.S.

17 at 678; Jones, 297 F.3d at 934. Plaintiff must demonstrate that each defendant personally

18 participated in the deprivation of his rights by their actions. Id. at 676-77 (emphasis added).

19 In the amended complaint, Plaintiff should include only those facts needed to state his

20 claims against each defendant, and there is no need for legal citations, arguments, or hypothetical

21 examples.

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

23 for the purpose of changing the nature of this suit or adding unrelated claims. George v. Smith,

24 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). Plaintiff is also advised that he

25 has not been granted leave to include allegations of events occurring after the initiation of this

26 lawsuit on February 19, 2021.

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

28 v. Maricopa County, 693 F.3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete in

1 itself without reference to the prior or superseded pleading, Local Rule 220. Therefore, in an

2 amended complaint, as in an original complaint, each claim and the involvement of each

3 defendant must be sufficiently alleged. The amended complaint should be clearly and boldly

4 titled “First Amended Complaint,” refer to the appropriate case number, and be an original signed

5 under penalty of perjury.

6 Based on the foregoing, it is HEREBY ORDERED that:

7 1. Plaintiff’s Complaint is dismissed for violation of Rule 8(a), with leave to amend;

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

9 3. Plaintiff is granted leave to file a First Amended Complaint not exceeding 25

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

11 4. The total number of pages of the First Amended Complaint, including the form

12 complaint and any exhibits, must not exceed 25 pages. If typewritten, the body

13 of the First Amended Complaint must be double-spaced. If handwritten, the

14 Complaint must be legible and written in reasonably-sized handwriting;

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

16 refer to the case number 1:21-cv-00212-GSA-PC; and

17 6. If Plaintiff fails to file a First Amended Complaint in compliance with this order

18 within thirty days, the complaint may be stricken from the record, or this case may

19 be dismissed for failure to comply with a court order.

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IT IS SO ORDERED.

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22 Dated: March 4, 2022 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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