# (PC) Lake v. Diaz

> District Court, E.D. California · November 4, 2022

URL: https://www.frixlaw.com/law-library/cases/10048357

## Case

- **Court:** District Court, E.D. California
- **Decided:** November 4, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10048357

## How later opinions describe it (automated extraction)

- noting that “nearly all of the circuits have now disapproved any 12 heightened pleading standard in cases other than those governed by Rule 9(b)”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 JOHN LAKE, No. 2:21-cv-0395 AC P
12 Plaintiff,
13 v. ORDER
14 RALPH DIAZ, et al.,
15 Defendants.
16
17 Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. §
18 1983.1 Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
19 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
20 For the reasons stated below, plaintiff’s motion to proceed in forma pauperis will be granted and
21 he will be given an opportunity to amend the complaint.
22 I. APPLICATION TO PROCEED IN FORMA PAUPERIS
23 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §
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1 Plaintiff indicates on the form complaint that he is proceeding pursuant to Bivens v. Six
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Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), which permits federal prisoners to seek
26 damages against a federal officer for having violated rights protected by the United States
Constitution. In this case, however, plaintiff’s mailing address and the allegations asserted in the
27 pleading concern the conditions of his confinement at Mule Creek State Prison in Ione,
California, meaning that plaintiff is a state (not federal) prisoner. The Court thus construes the
28 complaint as having been filed pursuant to 42 U.S.C. § 1983.
1 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
2 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§
3 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in
4 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct
5 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and
6 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments
7 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.
8 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time
9 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. §
10 1915(b)(2).
11 II. SCREENING REQUIREMENT
12 The court is required to screen complaints brought by prisoners seeking relief against a
13 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. §
14 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims
15 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be
16 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28
17 U.S.C. § 1915A(b)(1) & (2).
18 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.”
19 Neitzke v. Williams, 490 U.S. 319, 325 (1989) (brackets added); Franklin v. Murphy, 745 F.2d
20 1221, 1227-28 (9th Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on
21 indisputably meritless legal theories’ or whose ‘factual contentions are clearly baseless.’”
22 Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (brackets added) (quoting Neitzke, 490
23 U.S. at 327), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122,
24 1130 (9th Cir. 2000). The critical inquiry is whether a constitutional claim, however inartfully
25 pleaded, has an arguable legal and factual basis. Franklin, 745 F.2d at 1227-28 (citations
26 omitted).
27 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the
28 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
1 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550
2 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
3 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context
4 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,
5 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure
6 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a
7 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the
8 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain
9 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally
10 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur
11 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).
12 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
13 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (brackets added)
14 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads
15 factual content that allows the court to draw the reasonable inference that the defendant is liable
16 for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint
17 under this standard, the court must accept as true the allegations of the complaint in question, see,
18 e.g., Hosp. Bldg. Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as
19 well as construe the pleading in the light most favorable to the plaintiff and resolve all doubts in
20 the plaintiff’s favor, see Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).
21 III. THE COMPLAINT
22 As noted above, plaintiff is incarcerated at Mule Creek State Prison (MCSP). This action
23 proceeds against Ralph Diaz, Secretary of the California Department of Corrections and
24 Rehabilitation (“CDCR”); Patrick Cevello, MCSP Warden; and John Does 1-10.
25 Plaintiff’s factual allegations are sparse. As best as the Court can discern, plaintiff
26 purports to bring a class action concerning one or more executive orders issued by Governor
27 Gavin Newsom in response to the COVID-19 pandemic. According to plaintiff, the order(s)
28 directed CDCR officials to release 20,000 state inmates who meet certain criteria, including
1 advanced age, a non-violent offender, and/or disabled. On November 16, 2020, plaintiff
2 submitted a Petition for Release Due to Coronavirus Pandemic claiming to meet these criteria.
3 ECF No. 1 at 15. Specifically, plaintiff asserted that he is over 60 years old, his underlying
4 offense was not violent, and he is disabled. Presumably, plaintiff’s Petition for Release was
5 denied.
6 Plaintiff lists several claims, reproduced here, premised on the aforementioned
7 allegations:
8 (1) Violation of due process right to Governor Gavin Newsom
20,000 release overcrowding (2) COVID-19 social distancing (3)
9 ADA elderly release (4) high risk medical (5) appeals system
violation to due process rights (6) single cell violation, deliberate
10 indifference, cruel and unusual punishment (7) ADA deliberate
indifference to 15 CCR § 3358 artificial appliance Braille talking
11 book program, [unintelligible] pocket-talker, bed crate, mattress,
CPOC cord, knee braces, orthopedic shoes & orthotic insole ect, ect.
12 [sic]
13 Compl. at 3 (ECF No. 1 at 6).
14 For relief, plaintiff seeks release from prison, damages, injunctive relief in the form of
15 single cell housing and social distancing, the provision of unspecified appliances, “attorney
16 general assistance,” and payments under the Coronavirus Aid, Relief, and Economic Security
17 (CARES) Act.
18 IV. FAILURE TO STATE A CLAIM
19 A. Plaintiff Cannot Maintain a Class Action
20 Although plaintiff attempts to prosecute this lawsuit as a class action, he may not do so.
21 One of the prerequisites for a class action is that “the representative parties will fairly and
22 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). A class action may not be
23 certified where the representative parties are without counsel and especially where the plaintiff is
24 incarcerated. See McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966) (non-lawyer had
25 no authority to appear as an attorney for other persons in a purported class action); see also C.E.
26 Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987) (while a non-attorney may
27 represent himself, he has no authority to appear as an attorney for others); Oxendine v. Williams,
28 509 F.2d 1405, 1407 (4th Cir. 1975) (plain error to permit a prisoner proceeding pro se to
1 represent fellow prisoner in a class action). “This rule is an outgrowth not only of the belief that a
2 layman, untutored in the law, cannot ‘adequately represent’ the interests of the members of the
3 ‘class,’ but also out of the long-standing general prohibition against even attorneys acting as both
4 class representative and counsel for the class.” Huddleston v. Duckworth, 97 F.R.D. 512, 514
5 (N.D. Ind. 1983). While plaintiff is proceeding pro se, it is well-established that a layperson
6 cannot ordinarily represent the interests of a class. See McShane, supra, at 288. Further, a
7 plaintiff's privilege to appear in propria persona, as plaintiff does here, is a “privilege ... personal
8 to him. He has no authority to appear as an attorney for others than himself.” Id.
9 Plaintiff will therefore be required to amend his complaint clarifying that he brings this
10 action solely on behalf of himself.
11 B. Failure to Comply with Federal Rule of Civil Procedure 8
12 Pursuant to Rule 8(a), a complaint must contain “a short and plain statement of the claim
13 showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Detailed factual
14 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,
15 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation
16 omitted). Therefore, plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a
17 claim to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff
18 pleads factual content that allows the court to draw the reasonable inference that the defendant is
19 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citations and internal quotation marks
20 omitted).
21 As currently pled, plaintiff’s complaint does not contain enough factual details to permit
22 the Court to draw the reasonable inference that any of the defendants are liable for any
23 misconduct. Iqbal, 556 U.S. at 678. No basic facts are provided. Plaintiff asserts only
24 conclusory statements, insufficiently supported by factual details, which do not suffice to state
25 any claim. For these reasons, plaintiff's complaint fails to comply with Rule 8’s pleading
26 standard.
27 C. No Allegations of Personal Involvement
28 Relatedly, plaintiff sues the Secretary of the CDCR and the MCSP Warden but fails to
1 assert any allegations as to either. “Liability under § 1983 must be based on the personal
2 involvement of the defendant,” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (citing
3 May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980)), and “[v]ague and conclusory allegations of
4 official participation in civil rights violations are not sufficient,” Ivey v. Bd. of Regents, 673 F.2d
5 266, 268 (9th Cir. 1982) (citations omitted).
6 Additionally, “[t]here is no respondeat superior liability under section 1983,” Taylor v.
7 List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted), and plaintiff has not alleged facts
8 showing either defendants’ personal involvement in the alleged violation of his rights or a causal
9 connection between defendants’ conduct and the violation, see Starr v. Baca, 652 F.3d 1202, 1207
10 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). It appears that
11 defendants have been named based solely on their supervisory positions, which is insufficient to
12 state a claim for relief.
13 Even were the Court to construe plaintiff’s complaint as asserting that supervisory
14 officials failed to act to prevent the spread of the COVID-19 virus in the prison, courts in this
15 district have repeatedly held that such generalized allegations fail to state a claim. Booth v.
16 Newsom, No. 20-cv-1562 AC P, 2020 WL 6741730, at *2-3 (E.D. Cal. Nov. 17, 2020) (sua
17 sponte dismissing Eighth Amendment claims against the Governor for “failing to provide
18 adequate means for prisoners to reduce their exposure to COVID-19”), Blackwell v. Covello, No.
19 20-cv-1755 DB P, 2021 WL 915670, at *3 (E.D. Cal. Mar. 10, 2021) (generalized allegations that
20 warden had not done enough to control the spread of Covid-19 in the prison failed to state an
21 Eighth Amendment claim), and Benitez v. Sierra Conservation Ctr., Warden, No. 21cv0370-
22 BAM PC, 2021 WL 4077960, at *5 (E.D. Cal. Sept. 8, 2021) (“In order to state a cognizable
23 Eighth Amendment claim against the warden and the Health Executive Officer, Plaintiff must
24 provide more than generalized allegations that the warden and the Health Executive Officer have
25 not done enough regarding control the spread [of Covid-19].”), report and recommendation
26 adopted, 2021 WL 4593841 (E.D. Cal. Oct. 6, 2021)).
27 The complaint is therefore also subject to dismissal because plaintiff fails to link any
28 allegations to the named defendants.
1 D. Release from Custody Unavailable in this Action
2 Finally, plaintiff’s request for release from custody is not a form of relief available in a
3 civil rights action. See Skinner v. Switzer, 562 U.S. 521, 533-34 (2011) (a writ of habeas corpus
4 is the “exclusive remedy” for the prisoner who seeks “ ‘immediate or speedier release’ ” from
5 confinement). If plaintiff wishes to proceed with a claim that he is entitled to release from
6 custody pursuant to an executive order issued by the Governor, he must do so in a petition for a
7 writ of habeas corpus filed in a new case. However, plaintiff is advised that he may not contest
8 the state’s denial of a request for compassionate release in federal court. Ransom v. Adams, 313
9 F. App’x 948, 949 (9th Cir. 2009) (affirming dismissal of petitioner's claim that he was entitled to
10 compassionate release because an assertion that state officials failed to follow state law is not
11 cognizable in federal court). Plaintiff is further advised that before he may file a habeas petition
12 in this court, he must first exhaust any constitutional claims by raising them in the California
13 Supreme Court. 28 U.S.C. § 2254(b)(1).
14 E. Leave to Amend
15 Plaintiff fails to state any claims for relief under 42 U.S.C. § 1983. Plaintiff will be given
16 an opportunity to amend the complaint. In an amended complaint, plaintiff must address the
17 problems with his complaint that are explained above. Plaintiff is advised that in an amended
18 complaint they must clearly identify each defendant and the action that defendant took that
19 violated plaintiff’s constitutional rights. The court is not required to review exhibits to determine
20 what plaintiff’s charging allegations are as to each named defendant. If plaintiff wishes to add a
21 claim, he must include it in the body of the complaint. The charging allegations must be set forth
22 in the amended complaint so defendants have fair notice of the claims plaintiff is presenting.
23 That said, plaintiff need not provide every detailed fact in support of the claims. Rather, plaintiff
24 should provide a short, plain statement of each claim. See Fed. R. Civ. P. 8(a).
25 Any amended complaint must show the federal court has jurisdiction, the action is brought
26 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must
27 contain a request for particular relief. Plaintiff must identify as a defendant only persons who
28 personally participated in a substantial way in depriving plaintiff of a federal constitutional right.
1 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation
2 of a constitutional right if he does an act, participates in another’s act or omits to perform an act
3 he is legally required to do that causes the alleged deprivation). “Vague and conclusory
4 allegations of official participation in civil rights violations are not sufficient.” Ivey v. Bd. of
5 Regents, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted).
6 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed.
7 R. Civ. P. 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed.
8 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or
9 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).
10 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d
11 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any
12 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P.
13 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be
14 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema
15 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system,
16 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8.
17 An amended complaint must be complete in itself without reference to any prior pleading.
18 E.D. Cal. R. 220. Once plaintiff files an amended complaint, the original pleading is superseded.
19 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and has
20 evidentiary support for his allegations, and for violation of this rule the court may impose
21 sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11.
22 VIII. PLAIN LANGUAGE SUMMARY FOR A PRO SE LITIGANT
23 Your request to proceed in forma pauperis is granted, and you will not have to pay the
24 filing fee all at once. The court has screened your complaint and finds that it does not state a
25 claim for relief. The complaint will not be served, but you may file an amended complaint that
26 tries to fix the problems described in this order.
27 If you choose to amend your complaint, follow the instructions provided above. Be sure
28 to clearly identify who did what to violate your rights. Remember that supervisors can be liable
1 | only for violations they participate in or otherwise cause; they can’t be sued for things that other
2 || people did.
3 CONCLUSION
4 Accordingly, IT IS HEREBY ORDERED that:
5 1. The Clerk of Court shall send plaintiff a copy of this court’s Civil Rights Complaint
6 || By A Prisoner form;
7 2. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is GRANTED;
8 3. Plaintiff obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff
9 || is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1).
10 || All fees shall be collected and paid in accordance with this court’s order to the Director of the
11 | California Department of Corrections and Rehabilitation filed concurrently herewith; and
12 4. Within thirty days from the date of this order, plaintiff shall file a first amended
13 | complaint.
14 | DATED: November 3, 2022
Hthren— Llane
I5 ALLISON CLAIRE
16 UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10048357. Public record. Not legal advice.