Opinion

Asberry v. Foss

Court
District Court, N.D. California
Filed
Apr 20, 2020
Cited by
0 cases
Authority
More cited than 18.6%

affirming dismissal of 25 complaint that was “argumentative, prolix, replete with redundancy, and largely irrelevant”

How later courts described this case

  • affirming dismissal of 25 complaint that was “argumentative, prolix, replete with redundancy, and largely irrelevant”
  • finding, under Rule 18(a), prisoner 27 improperly brought complaint raising fifty distinct claims against twenty-four defendants

Written by the judges who cited it.

The opinion

1 UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA

3

TONY ASBERRY,

4 Case No. 19-cv-06311-YGR (PR)

Plaintiff,

5 ORDER OF PARTIAL DISMISSAL;

v. DISMISSING COMPLAINT WITH

6 LEAVE TO AMEND; AND DENYING

TAMMY FOSS, et al., MOTION FOR PRELIMINARY

7 INJUNCTION AS PREMATURE

Defendants.

8

9

I. INTRODUCTION

10

Plaintiff, a state prisoner currently incarcerated at Kern Valley State Prison, has filed the

11

instant pro se civil rights action pursuant to 42 U.S.C. § 1983. He alleges multiple violations of

12

his constitutional rights by prison officials and medical staff at Salinas Valley State Prison

13

(“SVSP”), where he was formerly incarcerated. Dkt. 1. Plaintiff has also filed a motion for a

14

preliminary injunction. Dkt. 2.

15

The Court will grant his motion for leave to proceed in forma pauperis in a separate

16

written Order.

17

In his complaint, Plaintiff names the following nineteen Defendants at SVSP: Warden

18

Tammy Foss; Correctional Officers D. Garcia, Villanueva, Carrillo, Alba, Sanchez, and M.

19

Garcia; Dentist “John Doe,” Nurse Florez; and John Does 1-10. Dkt. 1 at 5-6.1 Plaintiff seeks

20

compensatory and punitive damages. Id. at 24-25.

21

Venue is proper because certain events giving rise to the claims are alleged to have

22

occurred at SVSP, which is located in this judicial district. See 28 U.S.C. § 1391(b). Specifically,

23

Plaintiff’s twenty-six-page complaint raises multiple allegations with respect to events that

24

occurred at SVSP from May 2018 through May 2018. The Court now conducts its initial review

25

of the complaint pursuant to 28 U.S.C. § 1915A.

26

27

II. DISCUSSION

1

A. Standard of Review

2

A federal court must conduct a preliminary screening in any case in which a prisoner seeks

3

redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.

4

§ 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims

5

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

6

monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1), (2).

7

Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep’t,

8

901 F.2d 696, 699 (9th Cir. 1988).

9

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

10

claim showing that the pleader is entitled to relief.” To comport with Rule 8, “[s]pecific facts are

11

not necessary; the statement need only give the defendant fair notice of what the . . . claim is and

12

the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).

13

Although in order to state a claim a complaint “does not need detailed factual allegations, . . . a

14

plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than

15

labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

16

do. . . . Factual allegations must be enough to raise a right to relief above the speculative level.”

17

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A complaint must

18

proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. The United

19

States Supreme Court has explained the “plausible on its face” standard of Twombly: “While legal

20

conclusions can provide the complaint’s framework, they must be supported by factual

21

allegations. When there are well-pleaded factual allegations, a court should assume their veracity

22

and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal,

23

556 U.S. 662, 679 (2009).

24

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

25

(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

26

the alleged violation was committed by a person acting under color of state law. See West v.

27

Atkins, 487 U.S. 42, 48 (1988).

1 A supervisor may be liable under section 1983 upon a showing of personal involvement in

2 the constitutional deprivation or a sufficient causal connection between the supervisor’s wrongful

3 conduct and the constitutional violation. Redman v. County of San Diego, 942 F.2d 1435, 1446

4 (9th Cir. 1991) (en banc) (citation omitted). A supervisor therefore generally “is only liable for

5 constitutional violations of his subordinates if the supervisor participated in or directed the

6 violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d

7 1040, 1045 (9th Cir. 1989). This includes evidence that a supervisor implemented “a policy so

8 deficient that the policy itself is a repudiation of constitutional rights and is the moving force of

9 the constitutional violation.” Redman, 942 F.2d at 1446; see Jeffers v. Gomez, 267 F.3d 895, 917

10 (9th Cir. 2001).

11 B. Legal Claims

12 Plaintiff lists twenty claims for relief against a total of nineteen defendants (including

13 eleven Doe Defendants), from whom he seeks compensatory and punitive damages. Dkt. 1 at 13-

14 24. As mentioned above, the allegations in the complaint cover a span of time from May 2018

15 through May 2019, during which period Plaintiff was incarcerated at SVSP. See id.

16 Having reviewed the allegations in the complaint, the Court finds the following pleading

17 deficiencies require that the complaint be dismissed with leave to amend.

18 1. Rules 18(a) and 20 of the Federal Rules of Civil Procedure

19 As explained above, Plaintiff’s complaint is twenty-six pages long. It lists twenty legal

20 claims and names nineteen Defendants. The complaint is extraordinary broad, and appears to

21 touch upon many instances Plaintiff found objectionable during his incarceration at SVSP between

22 May 2018 through May 2019.

23 A plaintiff may properly join as many claims as he has against an opposing party. Fed. R.

24 Civ. P. 18(a). Nevertheless, while multiple claims against a single party may be alleged in a single

25 complaint, unrelated claims against different defendants must be alleged in separate complaints.

26 See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (finding, under Rule 18(a), prisoner

27 improperly brought complaint raising fifty distinct claims against twenty-four defendants).

1 severally, or in the alternative, any right to relief in respect of or arising out of the same

2 transaction, occurrence, or series of transactions or occurrences and if any question of law or fact

3 common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a). As a practical matter,

4 this means that claims involving different parties cannot be joined together in one complaint if the

5 facts giving rise to the claims were not factually related in some way—that is, if there was not

6 “similarity in the factual background.” Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997).

7 General allegations are not sufficient to constitute similarity when the specifics are different. Id.

8 The court, on its own initiative, may dismiss misjoined parties from an action, and any claim

9 against a misjoined party may be severed and proceeded with separately. Fed. R. Civ. P. 21.

10 Here, the complaint alleges twenty claims against Defendants that are not properly joined

11 under Rule 20(a) concerning joinder of claims and defendants. Specifically, these claims against

12 the nineteen Defendants cover a broad array of different incidents by different individuals over the

13 course of approximately one year. In his Amended Complaint, Plaintiff may only allege claims

14 that (a) arise out of the same transaction, occurrence, or series of transactions or occurrences and

15 (b) present questions of law or fact common to all defendants named therein. Plaintiff may not

16 include in a single complaint everything that has happened to him over one-year period that he

17 finds objectionable. He must choose what claims he wants to pursue that meet the joinder

18 requirements; if he asserts improperly joined claims in his Amended Complaint, they will be

19 dismissed.

20 2. Rule 8

21 As mentioned above, Rule 8(a) of the Federal Rules of Civil Procedure requires that the

22 complaint set forth “a short and plain statement of the claim showing that the pleader is entitled to

23 relief.” Additionally, Rule 8(e) requires that each averment of a pleading be “simple, concise, and

24 direct.” See McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) (affirming dismissal of

25 complaint that was “argumentative, prolix, replete with redundancy, and largely irrelevant”).

26 While the federal rules require brevity in pleading, a complaint nevertheless must be sufficient to

27 give the defendants “fair notice” of the claim and the “grounds upon which it rests.” Erickson v.

1 state the specific acts of the defendant that violated the plaintiff’s rights fails to meet the notice

2 requirements of Rule 8(a). See Hutchinson v. United States, 677 F.2d 1322, 1328 n.5 (9th Cir.

3 1982). However, under section 1983, liability may be imposed on an individual defendant only if

4 the plaintiff can show that the defendant proximately caused the deprivation of a federally

5 protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). As explained above, a

6 supervisor may be liable under section 1983 only upon a showing of (1) personal involvement in

7 the constitutional deprivation or (2) a sufficient causal connection between the supervisor’s

8 wrongful conduct and the constitutional violation. Redman, 942 F.2d at 1446. Under no

9 circumstances is there respondeat superior liability under section 1983. Taylor v. List, 880 F.2d

10 1040, 1045 (9th Cir. 1989).

11 Here, Plaintiff’s claims cannot proceed as pleaded because he has not directly linked all of

12 the named Defendants to his allegations. Specifically, each of Plaintiff’s claims is brought against

13 numerous defendants, some of whom either are not mentioned in his statement of facts, or are

14 linked only in a conclusory manner to his claims. Further, the complaint names a supervisory

15 official (Defendant Foss), against whom liability is alleged solely in their respondent superior

16 capacity, which is improper. Id. Additionally, while Plaintiff does directly link some individual

17 Defendants to some of his claims, the allegations in the twenty-six-page complaint are so lengthy

18 and unnecessarily detailed that the Court cannot readily determine all of the injuries for which

19 each of the nineteen Defendants is allegedly liable.

20 3. Summation

21 In sum, even when Plaintiff’s claims are liberally construed, he has failed to provide

22 adequate information for the Court to determine whether the allegations in the complaint state

23 cognizable claims for relief with respect to each of the nineteen Defendants who were allegedly

24 responsible for Plaintiff’s injuries at the time he was incarcerated at SVSP. Furthermore, Plaintiff

25 has failed to allege that they meet proper joinder requirements. Plaintiff also has failed to provide

26 a simple, concise, narrative that sets forth all of the injuries attributed to each individual defendant.

27 Accordingly, Plaintiff will be given leave to file an Amended Complaint in which he clearly links

1 responsible. While Plaintiff must, in filing his amended complaint, provide sufficient information

2 to give the defendants fair notice of the nature of the claims against them, Plaintiff need not

3 provide a lengthy narrative with respect to each defendant to satisfy the pleading requirements of

4 Rule 8. Instead, Plaintiff should provide a concise statement identifying each Defendant and the

5 specific action or actions the defendant took, or failed to take, that allegedly caused the

6 deprivation of Plaintiff’s constitutional rights, as well as the injury resulting therefrom.

7 Additionally, Plaintiff should not name any defendant who is linked solely in his respondent

8 superior capacity or against whom Plaintiff cannot allege facts that would establish supervisorial

9 liability.

10 C. Claims Against Doe Defendants

11 Plaintiff mentions he wishes to name as Defendants certain Doe Defendant, including

12 Dentist “John Doe” as well as “John Does 1-10,” whose names he apparently intends to learn

13 through discovery. Dkt. 1 at 5-6. Where the identity of alleged defendants cannot be known prior

14 to the filing of a complaint, the plaintiff should be given an opportunity through discovery to

15 identify them. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Failure to afford the

16 plaintiff such an opportunity is error. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir.

17 1999). Accordingly, Plaintiff’s claims against the Doe Defendants are DISMISSED. Should

18 Plaintiff learn the identities of the unnamed defendants, he may move for leave to amend to add

19 them as named defendants. See Brass v. County of Los Angeles, 328 F.3d 1192, 1195-98 (9th Cir.

20 2003).

21 III. MOTION FOR PRELIMINARY INJUNCTION

22 Plaintiff also has filed a motion for a preliminary injunction. Dkt. 2. Federal Rule of Civil

23 Procedure 65 sets forth the procedure for issuance of a preliminary injunction or temporary

24 restraining order (“TRO”). Prior to granting a preliminary injunction, notice to the adverse party

25 is required. See Fed. R. Civ. P. 65(a)(1). Therefore, a motion for preliminary injunction cannot be

26 decided until the parties to the action are served. See Zepeda v. INS, 753 F.2d 719, 727 (9th Cir.

27 1983). A TRO may be granted without written or oral notice to the adverse party or that party’s

1 complaint that immediate and irreparable injury, loss or damage will result to the applicant before

2 the adverse party or the party’s attorney can be heard in opposition, and (2) the applicant’s

3 attorney certifies in writing the efforts, if any, which have been made to give notice and the

4 reasons supporting the claim that notice should not be required. See Fed. R. Civ. P. 65(b). The

5 motion is DENIED as premature because the parties to this action have not yet been served, and

6 Plaintiff has failed to satisfy either of the criteria under Rule 65(b) for granting a TRO without

7 notice to the adverse parties. Id.

8 IV. CONCLUSION

9 For the foregoing reasons, the Court orders as follows:

10 1. Plaintiff’s complaint is DISMISSED with leave to amend in order to give him the

11 opportunity to file a simple, concise and direct Amended Complaint which:

12 a. States clearly and simply each claim he seeks to bring in federal court as

13 required under Rule 8, and he should:

14

i. Set forth each claim in a separate numbered paragraph;

15

ii. Identify each defendant and the specific action or actions

16 each defendant took, or failed to take, that allegedly

caused the deprivation of Plaintiff’s constitutional rights; and

17

iii. Identify the injury resulting from each claim;

18

b. Explains how he has exhausted his administrative remedies as to each

19

claim as against each defendant before he filed this action;

20

c. Only alleges those claims that are properly joined under Rule 20(a)

21

(concerning joinder of claims and Defendants) or, stated differently, because Plaintiff may not list

22

everything that has happened to him over a one-year period in prison that he finds objectionable,

23

the Amended Complaint may only allege claims that:

24

25 i. Arise out of the same transaction, occurrence, or series of

transactions or occurrences; and

26

ii. Present questions of law or fact common to all Defendants;

27

d. Does not make conclusory allegations linking each defendant by listing

1 them as having “direct involvement” to his claims without specifying how each defendant was

2 linked through their actions;

3 e. Does not name any defendant who did not act but is linked solely in his or

4 her respondent superior capacity or against whom Plaintiff cannot allege facts that would establish

5 either supervisorial or municipal liability; and

6 f. Does not name Doe Defendants.

7 2. Plaintiff’s claims against the Doe Defendants are DISMISSED without prejudice to

8 Plaintiff moving for leave to amend to add them as named defendants once he learns their

9 identities.

10 3. Within twenty-eight (28) days from the date of this Order, Plaintiff shall file his

11 Amended Complaint as set forth above. Plaintiff must use the attached civil rights form, write the

12 case number for this action—Case No. C 19-6311 YGR (PR)—on the form, clearly label the

13 complaint “Amended Complaint,” and complete all sections of the form. Because the Amended

14 Complaint completely replaces the original complaint, Plaintiff must include in it all the claims he

15 wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S.

16 915 (1992). He may not incorporate material from the original complaint by reference. If Plaintiff

17 wishes to attach any additional pages to the civil rights form, he shall maintain the same format as

18 the form, i.e., answer only the questions asked in the “Exhaustion of Administrative Remedies”

19 section without including a narrative explanation of each grievance filed. Plaintiff’s failure to

20 file his Amended Complaint by the twenty-eight-day deadline or to correct the

21 aforementioned deficiencies outlined above will result in the dismissal of this action without

22 prejudice.

23 4. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

24 informed of any change of address and must comply with the Court’s orders in a timely fashion.

25 Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address changes

26 while an action is pending must promptly file a notice of change of address specifying the new

27 address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail

1 (2) the Court fails to receive within sixty days of this return a written communication from the pro

2 || se party indicating a current address. See L.R. 3-11(b).

3 5. The Clerk shall send Plaintiff a blank civil rights form along with a copy of this

4 || Order.

5 6. Plaintiff’s motion for a preliminary injunction is DENIED as premature. Dkt. 2.

6 7. This Order terminates Docket. No. 2.

7 IT IS SO ORDERED.

8 || Dated: April 20, 2020

9

ONNE GONZALEZ ROGERS

10 United States District Judge

11

12

15

16

= 17

Z 18

19

20

21

22

23

24

25

26

27

28

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.