# (PC) Cisneros v. Muniz

> District Court, E.D. California · August 22, 2023

URL: https://www.frixlaw.com/law-library/cases/10055082

## Case

- **Court:** District Court, E.D. California
- **Decided:** August 22, 2023
- **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/10055082

## How later opinions describe it (automated extraction)

- recognizing that Rule 8 can be violated when the plaintiff 1 provides too much information

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 DANIEL CISNEROS, Case No. 1:22-cv-01601-HBK (PC)
12 Plaintiff, SCREENING ORDER FINDING FIRST
AMENDED COMPLAINT VIOLATIVE OF
13 v. RULE 8 AND DIRECTING PLAINTIFF TO
FILE AN AMENDED COMPLAINT, STAND
14 JUAN MUNIZ, RAVIJOT GILL, ON COMPLAINT, OR FILE VOLUNTARY
MARIANA LOTERSZTAIN, MARIE DISMISSAL1
15 RUSSELL, and CDCR,
(Doc. No. 6)
16 Defendants.
SEPTEMBER 22, 2023 DEADLINE
17
18 Pending before the Court for screening under 28 U.S.C. § 1915A is the first amended pro
19 se civil rights complaint filed under 42 U.S.C. § 1983 by Daniel Cisneros—a prisoner. (Doc. No.
20 6, “FAC”). Upon review, the Court finds the FAC violates the procedural rules governing
21 pleadings. The Court affords Plaintiff the option to file an amended complaint or voluntarily
22 dismiss his Complaint before recommending the district court dismiss this action.
23 SCREENING REQUIREMENT
24 A plaintiff who commences an action while in prison is subject to the Prison Litigation
25 Reform Act (“PLRA”), which requires, inter alia, the court to screen a complaint that seeks relief
26 against a governmental entity, its officers, or its employees before directing service upon any
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1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302
28 (E.D. Cal. 2022).
1 defendant. 28 U.S.C. § 1915A. This requires the court to identify any cognizable claims and
2 dismiss the complaint, or any portion, if is frivolous or malicious, if it fails to state a claim upon
3 which relief may be granted, or if it seeks monetary relief from a defendant who is immune from
4 such relief. See 28 U.S.C. §§ 1915A(b)(1), (2).
5 The Federal Rules of Civil Procedure require only that a complaint include “a short and
6 plain statement of the claim showing the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2).
7 Nonetheless, a claim must be facially plausible to survive screening. This requires sufficient
8 factual detail to allow the court to reasonably infer that each named defendant is liable for the
9 misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Moss v. U.S. Secret Service,
10 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not
11 sufficient, and mere consistency with liability falls short of satisfying the plausibility standard.
12 Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. Although detailed factual allegations are not
13 required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
14 statements, do not suffice,” Iqbal, 556 U.S. at 678 (citations omitted), and courts “are not required
15 to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir.
16 2009) (internal quotation marks and citation omitted).
17 If an otherwise deficient pleading can be remedied by alleging other facts, a pro se litigant
18 is entitled to an opportunity to amend their complaint before dismissal of the action. See Lopez v.
19 Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc); Lucas v. Department of Corr., 66 F.3d
20 245, 248 (9th Cir. 1995). However, it is not the role of the court to advise a pro se litigant on how
21 to cure the defects. Such advice “would undermine district judges’ role as impartial
22 decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131
23 n.13. Furthermore, the court in its discretion may deny leave to amend due to “undue delay, bad
24 faith or dilatory motive of the part of the movant, [or] repeated failure to cure deficiencies by
25 amendments previously allowed . . . .” Carvalho v. Equifax Info. Srvs., LLC, 629 F.3d 876, 892
26 (9th Cir. 2010).
27 SUMMARY OF THE FAC
28 Plaintiff is proceeding on his FAC, which he filed as a right prior to the Court screening
1 his initial Complaint. Fed. R. Civ. P. 15(a). The events giving rise to the FAC took place at
2 Corcoran State Prison. (Doc. No. 6 at 1). The FAC names the following as Defendants: (1) Juan
3 Muniz, Registered Nurse; (2) Dr. Ravijot Gill; (3) Dr. Mariana Lotersztain; (4) Marie Russell,
4 Health Care Manager; and (5) California Department of Corrections and Rehabilitation
5 (“CDCR”). (Id. at 2).
6 Plaintiff’s FAC alleges an Eighth Amendment medical deliberate indifference claim
7 stemming from the delay in treating Plaintiff’s neck pain. (See generally Id. at 5-41). The FAC
8 also alleges state tort claims of medical malpractice and negligence. (Id.). As relief, Plaintiff
9 seeks declaratory relief, compensatory and punitive damages, and costs. (Id. at 40-41).
10 APPLICABLE LAW AND ANALYSIS
11 A. Rule 8
12 Rule 8 states that “[e]ach allegation must be simple, concise, and direct.” Fed. R. Civ. P.
13 8(d)(1). To ensure compliance with Rule 8, courts of the Eastern District of California generally
14 limit complaints to twenty-five pages. See Lal v. United States, 2022 WL 37019, at *2 (E.D. Cal.
15 Jan. 3, 2022); Williams v. Corcoran State Prison, 2022 WL 1093976, at *1 (E.D. Cal. Apr. 12,
16 2022). The page limit includes the complaint itself and any exhibits, for a total of twenty-five
17 pages. See Rivas v. Padilla, 2022 WL 675704, at *2 (E.D. Cal. Mar. 7, 2022). “[A] lengthy
18 complaint can violate Rule 8 if a defendant would have difficulty responding to the complaint.”
19 Skinner v. Lee, 2021 WL 6617390, at *2-*3 (C. D. Cal. May 20, 2021) (citing Cafasso v. Gen.
20 Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011). A district court has the power to
21 dismiss a complaint when a plaintiff fails to comply with Rules 8’s pleading directives. McHenry
22 v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671,
23 673 (9th Cir. 1981). When the factual elements of a cause of action are not organized into a short
24 and plain statement for each particular claim, a dismissal for failure to satisfy Rule 8(a) is
25 appropriate. Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988); see also
26 Nevijel, 651 F.2d at 674. Under Rule 8, allegations of facts that are extraneous and not part of the
27 factual basis for the particular constitutional claim are not permitted. See Knapp v. Hogan, 738
28 F.3d 1106, 1109 (9th Cir. 2013) (recognizing that Rule 8 can be violated when the plaintiff
1 provides too much information).
2 Plaintiff’s FAC fails to comply with Rule 8 due to its failure to state short and plain
3 statements of fact. Plaintiff’s FAC is 71 pages, including exhibits, and sets forth 94 separate
4 averments of facts. The statements of fact in the FAC are anything but short and plain. The FAC
5 contains a diary-like recitation of transgressions by Defendants spanning a 78-day period, from
6 December 22, 2021 to February 16, 2022. Additionally, various averments of facts incorporate
7 by reference previous averments, which directly violates Rule 8’s requirement to state short and
8 plain statements. Not only does the FAC violate Rule 8 due to its failure to set forth short and
9 plain facts, the FAC includes 28 pages of attachments, which contain handwritten notes by
10 Plaintiff in an apparent attempt to explain the relevance of the document.
11 A court has discretion to dismiss a complaint due to its failure to comply with Rule 8.
12 Even if the factual elements of the cause of action are present, if they are scattered throughout the
13 complaint and are not organized into a “short and plain statement of the claim,” dismissal for
14 failure to satisfy Rule 8(a)(2) is proper. McHenry, 84 F.3d at 1178. “The propriety of dismissal
15 for failure to comply with Rule 8 does not depend on whether the complaint is wholly without
16 merit.” Id. at 1179. And it is not the responsibility of this already overburdened Court “to scour
17 through a set of voluminous documents attached to [a] complaint and articulate a case for [the
18 plaintiff].” See North v. Mirra, 2014 WL 345303, at * 2 (W.D. Wash. Jan. 30, 2014); see also
19 Fairfield v. Khoo, 2021 WL 1178261, at *1-*2 (E.D. Cal. Mar. 29, 2021).
20 Due to length of the FAC and the materials attached, the Court cannot discern if any of
21 Plaintiff’s claims are cognizable and cannot evaluate the merits of each induvial claim. Nor
22 would Defendants be able to respond to the FAC as pled.
23 If Plaintiff chooses to file an amended complaint, it cannot exceed twenty-five (25) pages,
24 cannot refer or incorporate by reference previous paragraphs or averments of fact, and cannot
25 state a diary-like recitation of facts. See McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996)
26 (affirming the district court’s decision to dismiss a complaint, which was prolix and confusing,
27 for violating Rule 8 because it was not simple, concise and direct). Instead, Plaintiff must allege
28 each claim, with particularity, but in short and plain statements that document the alleged act of
1 wronging by each defendant, where and when committed, and how the alleged act injured
2 Plaintiff.
3 B. State Tort Claims
4 The FAC also alleges state tort claims for negligence and medical malpractice. To
5 proceed on his state tort claims, Plaintiff must plead compliance with California's Government
6 Claims Act. California's Government Claims Act requires that a tort claim against a public entity,
7 or its employees, be presented to the California Victim Compensation and Government Claims
8 Board, formerly known as the State Board of Control, no more than six months after the cause of
9 action accrues. Cal. Gov't Code §§ 905.2, 910, 911.2, 945.4, 950–950.2. Presentation of a
10 written claim, and action on or rejection of the claim are conditions precedent to suit. State v.
11 Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 1245 (Cal. 2004); Mangold v.
12 California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995). If Plaintiff chooses to file an
13 amended complaint, he must assert facts as to his compliance with California’s Government
14 Claims Act.
15 OPTIONS
16 To continue the prosecution of this action, Plaintiff must take one of the following three
17 options no later than September 22, 2023
18 First Option: Because the Court cannot determine that the filing of an amended
19 complaint cannot cure the deficiencies identified above, the Court will afford Plaintiff an
20 opportunity to file an amended complaint if he chooses. An amended complaint supersedes
21 (replaces) the FAC and, thus, the amended complaint must be free-standing and complete. See
22 Hal Roach Studios, Inc. 896 F.2d at 1546. Plaintiff should use the Court’s approved Prisoner
23 Civil Rights Complaint Form to file his amended complaint and he must title it “Second
24 Amended Complaint.” For each cause of action and each defendant, Plaintiff must allege plain
25 and short facts sufficient to show that the defendant violated his civil rights. Plaintiff may not
26 amend the complaint to add unrelated claims. Second Option: Plaintiff may file a Notice stating
27 he intends to stand on his FAC subject to the undersigned recommending the district court
28 dismiss for the reasons stated in this Order. If the Court dismisses this case finding that the FAC
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1 | fails to state claim, the dismissal will count as a strike under the PLRA.” Third Option: Because
2 | no defendant has yet been served, Plaintiff may file a Notice of Voluntary Dismissal without
3 | prejudice under Federal Rule of Civil Procedure 41(a)(1) which would preclude this action as
4 | counting a strike under the PLRA. If Plaintiff fails to timely respond to this Court Order, i.e.,
5 | fails to perform any of the three options, the undersigned will instead recommend that the district
6 | court dismiss this case as a sanction for Plaintiff's failure to comply with a court order and for
7 | failing to prosecute this action after its determination that the complaint failed to state a claim,
8 || which will count as strike under the PLRA. See Local Rule 110; Fed. R. Civ. P. 41(b).
9 Accordingly, it is ORDERED:
10 1. No later than September 22, 2023 Plaintiff must elect one of three
11 | aforementioned options and deliver by this date to correctional for mailing: (a) a Second
12 | Amended Complaint; (b); a Notice stating that he intends to stand on the Complaint as screened
13 || subject to the undersigned recommending the district court dismiss the FAC for the reasons stated
14 | inthis Order; or (c) a Notice stating he wishes to voluntarily dismiss this action without prejudice
15 | under Fed. R. Civ. P. 41 to avoid a strike.
16 2. If Plaintiff fails to timely comply with this Court Order or seek an extension of
17 | time to comply, the Court will recommend that the district court dismiss this action for □□□□□□□□□□□
18 | failure to comply with this Court Order and prosecute this action.
19 3. The Clerk of Court shall include a blank civil rights complaint form for □□□□□□□□□□□
20 | use as appropriate.
21
Dated: _ August 22, 2023 Mba o. Th. Bares Back
22 HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE
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|_§$ ——
> Under § 1915(g), prisoners who have repeatedly brought unsuccessful suits may be barred from bringing
26 | acivil action and paying the fee on a payment plan once they have had on prior occasions three or more
cases dismissed as frivolous, malicious, or for failure to state a claim. Lomax v. Ortiz-Marquez, □□□ □□ Ct.
27 1721, 1723 (2020); see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir. 2007). Regardless of
whether the dismissal was with or without prejudice, a dismissal for failure to state a claim qualifies as a
28 | strike under § 1915(g). Lomax, 140 S. Ct. at 1727.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10055082. Public record. Not legal advice.