# Rubio v. Allison

> District Court, N.D. California · July 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10068431

## Case

- **Court:** District Court, N.D. California
- **Decided:** July 26, 2021
- **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/10068431

## How later opinions describe it (automated extraction)

- finding, under Rule 18(a), prisoner 21 improperly brought complaint raising fifty distinct claims against twenty-four defendants

## Opinion text

1 UNITED STATES DISTRICT COURT
2 NORTHERN DISTRICT OF CALIFORNIA
3
ROBERT LOUIS RUBIO,
4 Case No. 21-cv-00921-YGR (PR)
Plaintiff,
5 ORDER OF DISMISSAL WITH LEAVE
v. TO AMEND
6
KATHLEEN ALLISON, et al.,
7
Defendants.
8

9 I. INTRODUCTION
10 Plaintiff, who is currently housed at San Quentin State Prison (“SQSP”) filed a pro se civil
11 rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s motion for leave to proceed in forma
12 pauperis (“IFP”) in a separate order.
13 Venue is proper because most of the events giving rise to Plaintiff’s claims are alleged to
14 have occurred at SQSP, which is located in this judicial district. See 28 U.S.C. § 1391(b).
15 The Court now reviews Plaintiff’s complaint pursuant to 28 U.S.C. § 1915. For the
16 reasons set forth below, the Court DISMISSES the complaint with leave to amend to correct
17 certain deficiencies addressed below, and directs Plaintiff to provide sufficient information
18 regarding the exhaustion of administrative remedies as to each claim.
19 II. DISCUSSION
20 A. Standard of Review
21 Federal courts must engage in a preliminary screening of cases in which prisoners seek
22 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
23 § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims
24 which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek
25 monetary relief from a defendant who is immune from such relief. Id. at 1915A(b)(1),(2). Pro se
26 pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th
27 Cir. 1990).
1 show that the defendant proximately caused the deprivation of a federally protected right. See
2 Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Harris v. City of Roseburg, 664 F.2d 1121,
3 1125 (9th Cir. 1981). A person deprives another of a constitutional right within the meaning of
4 section 1983 if he does an affirmative act, participates in another’s affirmative act or omits to
5 perform an act which he is legally required to do, that causes the deprivation of which the plaintiff
6 complains. Leer, 844 F.2d at 633; Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995). To
7 state a claim a plaintiff must show a specific constitutional or federal guarantee safeguarding the
8 interests that have been invaded. See Paul v. Davis, 424 U.S. 693, 697 (1976).
9 Although a plaintiff is not required to plead “specific factual details not ascertainable in
10 advance of discovery,” Gibson v. United States, 781 F.2d 1334, 1340 (9th Cir. 1986), he does not
11 state a claim under 42 U.S.C. § 1983 if the allegations in the complaint are mere conclusions,
12 Kennedy v. H & M Landing, Inc., 529 F.2d 987, 989 (9th Cir. 1976); Fisher v. Flynn, 598 F.2d
13 663, 665 (1st Cir. 1979). A complaint must contain sufficient allegations to put defendants fairly
14 on notice of the claims against them. McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). A
15 complaint that fails to state the specific acts of the defendant which violated the plaintiff’s rights
16 fails to meet the notice requirements of Federal Rule of Civil Procedure 8(a). Hutchinson v.
17 United States, 677 F.2d 1322, 1328 n.5 (9th Cir. 1982).
18 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the
19 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the
20 statement need only ‘“give the defendant fair notice of what the . . . claim is and the grounds upon
21 which it rests.”’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). Although in
22 order to state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s
23 obligation to provide the ‘grounds of his ‘entitle[ment] to relief’ requires more than labels and
24 conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . .
25 Factual allegations must be enough to raise a right to relief above the speculative level.” Bell
26 Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55 (2007) (citations omitted). A complaint must
27 proffer “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. The United
1 conclusions can provide the framework of a complaint, they must be supported by factual
2 allegations. When there are well-pleaded factual allegations, a court should assume their veracity
3 and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal,
4 556 U.S. 662, 679 (2009).
5 B. Legal Claims
6 1. Constitutional Violations Based on Confinement at SQSP Relating to
COVID-19 Issues
7
As mentioned above, pursuant to Fed. R. Civ. P. 8(a)(2), Plaintiff must provide “a short
8
and plain statement of the claim showing that the pleader is entitled to relief . . .” Rule 8 requires
9
“sufficient allegations to put defendants fairly on notice of the claims against them.” McKeever v.
10
Block, 932 F.2d 795, 798 (9th Cir. 1991); see also Richmond v. Nationwide Cassel L.P., 52 F.3d
11
640, 645 (7th Cir. 1995) (amended complaint with vague and scanty allegations fails to satisfy the
12
notice requirement of Rule 8). “The propriety of dismissal for failure to comply with Rule 8 does
13
not depend on whether the complaint is wholly without merit.” McHenry v. Renne, 84 F.3d 1172,
14
1179 (9th Cir. 1996).
15
Plaintiff’s complaint in the instant action illustrates the “unfair burdens” imposed by
16
complaints, “prolix in evidentiary detail, yet without simplicity, conciseness and clarity” which
17
“fail to perform the essential functions of a complaint.” Id. at 1179-80.
18
Plaintiff names as Defendants California Department of Corrections and Rehabilitation
19
(“CDCR”) Director Kathleen Allison “and others,” including these other seventeen named
20
Defendants: CDCR Secretary Ralph Diaz; CDCR Associate Director Ron Davis; Federal Receiver
21
Clark Kelso; Governor Gavin Newsom; CDCR Director of California Correctional Health Care
22
Services (“CCHCS”) Dr. Joseph Bick; and various prison officials at California Institute for Men
23
(“CIM”)1 and SQSP. Dkt. 1 at 5-8.
24
Plaintiff makes numerous allegations against the eighteen named Defendants regarding
25
SQSP’s handling of the COVID-19 pandemic in 2020 and certain other prison conditions.2 See
26

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1 Plaintiff incorrectly refers to CIM as Chino State Prison or “CSP.” Dkt. 1 at 11.
1 generally Dkt. 1. Plaintiff states that in March 2020, the CDCR refused free COVID-19 tests for
2 its staff and inmate population. Id. at 9. A fellow inmate, Kenneth A. Cooper, wrote to
3 Defendants Broomfield (SQSP Warden) and Pachynski (SQSP Chief Medical Officer) and asked
4 why masks were not being worn at SQSP. Id. Plaintiff states that inmate Cooper also asked
5 Defendants Arnold (SQSP Captain), Teixeira and Haub (SQSP Lieutenants) and Dutton (SQSP
6 Sergeant) why there was little social distancing when inmates gathered for medication to be
7 dispensed, showers, and meal times. Id. at 9-10. Plaintiff states that several large fans were
8 brought in to increase ventilation, but he “questioned custody personnel” whether these fans could
9 have caused further spread of the virus. Id. at 10. Plaintiff states that other prisoners like inmate
10 Cooper raised these issues; however, Plaintiff does not discuss the actions that individual
11 defendants took or how the actions were deliberately indifferent. See id. at 9-11. While Plaintiff
12 has presented serious allegations, he must provide more information regarding the culpability of
13 the named Defendants. Bare allegations—that a certain Defendant had been asked about any of
14 the aforementioned COVID-19 issues without including any additional information—are
15 insufficient.
16 Plaintiff describes how on May 30, 2020, 121 inmates from CIM were transferred to
17 SQSP, without proper COVID-19 testing and an outbreak occurred at SQSP. Id. at 11. Plaintiff
18 states he began to suffer serious COVID-19 symptoms on July 5, 2020. Id. at 12. While these
19 allegations are sufficient to state a claim, Plaintiff must provide more information how each of the
20 eighteen Defendants he names as responsible were involved. Vague and conclusory allegations
21 concerning the involvement of supervisory personnel in civil rights violations are not sufficient to
22 state a claim. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). For example,
23 Plaintiff states that “[u]ndoubtedly” Defendant Bick (Director of CDCR’s CCHCS) “obviously
24 failed to develop and properly implement adequate training and transfer protocols that protect the
25 prison population.” Id. at 11. Plaintiff adds that “[s]urely” Defendant Davis (CDCR’s Associate
26

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Court. See, e.g., Amos v. Allison, Case No. 20-cv-8152 HSG (PR); Robeldo v. Allison, Case No.
1 Director of Reception Centers) as well as Defendants Kelso, Allison, Newsom, and Diaz (CDCR
2 Secretary), SQSP Defendants Pachynski and Broomfield, and CIM Defendants Escobell and
3 Borders, were aware of the transfer of CIM inmates to SQSP and “failed to take prudent action”
4 and that Defendant Kelso “should have been right on top of this.” Id. at 11-12. Plaintiff must
5 present more information as to how each named Defendant, including the supervisory defendants,
6 was directly involved in the constitutional deprivation and how the action (or inaction) constituted
7 deliberate indifference. He must present additional allegations to state a plausible claim for relief
8 for each Defendant. There is no respondeat superior liability under section 1983. Taylor v. List,
9 880 F.2d 1040, 1045 (9th Cir. 1989). Said differently, it is not enough that the supervisor merely
10 has a supervisory relationship over the defendants; the plaintiff must show that the supervisor
11 “participated in or directed the violations, or knew of the violations and failed to act to prevent
12 them.” Id. Furthermore, supervisor defendants are entitled to qualified immunity where the
13 allegations against them are simply “bald” or “conclusory” because such allegations do not
14 “plausibly” establish the supervisors’ personal involvement in their subordinates’ constitutional
15 wrong. Iqbal, 556 U.S. at 679.
16 2. Federal Pleading Standards Under Rule 18(a) and Rule 20
17 A plaintiff may properly join as many claims as he has against an opposing party. Fed. R.
18 Civ. P. 18(a). Nevertheless, while multiple claims against a single party may be alleged in a single
19 complaint, unrelated claims against different defendants must be alleged in separate complaints.
20 See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (finding, under Rule 18(a), prisoner
21 improperly brought complaint raising fifty distinct claims against twenty-four defendants).
22 Further, parties may be joined as defendants only if “there is asserted against them jointly,
23 severally, or in the alternative, any right to relief in respect of or arising out of the same
24 transaction, occurrence, or series of transactions or occurrences and if any question of law or fact
25 common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a). As a practical matter,
26 this means that claims involving different parties cannot be joined together in one complaint if the
27 facts giving rise to the claims were not factually related in some way—that is, if there was not
1 General allegations are not sufficient to constitute similarity when the specifics are different. Id.
2 The Court, on its own initiative, may dismiss misjoined parties from an action, and any claim
3 against a misjoined party may be severed and proceeded with separately. Fed. R. Civ. P. 21.
4 Here, the Court has determined above that Plaintiff’s complaint contains insufficient
5 information with respect to the claims above relating to the COVID-19 issues. At this time, the
6 Court is also unable to determine whether Plaintiff’s aforementioned claims are related to the other
7 claims in his complaint. For example, Plaintiff also states that from March 17, 2020, to November
8 1, 2020, medical and dental care stopped at SQSP. Dkt. 1 at 13. However, Plaintiff fails to
9 describe what medical or dental care he required that could not be addressed and how the denial of
10 such care violated the Eighth Amendment. Plaintiff also claims there was no independent hot-
11 water hose bib provided to clean the shower area, despite numerous requests. Id. at 10. In
12 addition, Plaintiff claims that Defendant Boise (SQSP Lieutenant) removed all toilets from the
13 yard for a “roughly one-year” period that ended on August 1, 2020, requiring inmates to defecate
14 in trash cans or urinate in the gutter, when not in their cells. Id. at 10-11. Plaintiff further alleges
15 how he has been denied outdoor exercise for many months. Id. at 12. If Plaintiff wishes to pursue
16 these claims in this case, he must provide more information and describe how they relate to his
17 other COVID-19 claims and why they do not belong in a separate action.
18 In his amended complaint, Plaintiff may only allege claims that (a) arise out of the same
19 transaction, occurrence, or series of transactions or occurrences and (b) present questions of law or
20 fact common to all defendants named therein. Plaintiff must choose what claims he wants to
21 pursue that meet the joinder requirements; if he asserts improperly joined claims in his amended
22 complaint, they will be dismissed.
23 In sum, the Court will allow Plaintiff leave to prepare a proper amended complaint that is
24 consistent with federal pleading standards. As explained above, Plaintiff must correct the
25 deficiencies outlined as to each of his claims above. Plaintiff is also advised that for each claim,
26 he must, to the best of his ability, specifically identify each Defendant, and specify what
27 constitutional right he believes each Defendant has violated. Importantly, Plaintiff must allege
1 liability. A person deprives another of a constitutional right within the meaning of 42 U.S.C.
2 §1983 if he does an affirmative act, participates in another’s affirmative act or omits to perform an
3 act which he is legally required to do, that causes the deprivation of which the plaintiff complains.
4 Leer, 844 F.2d at 633. There can be no liability under section 1983 unless there is some
5 affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo v.
6 Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980).
7 3. Exhaustion of Administrative Remedies
8 A question which must be answered before Plaintiff can proceed with his claims is whether
9 he has exhausted available administrative remedies with respect to each claim.
10 The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996)
11 (“PLRA”), amended 42 U.S.C. § 1997e to provide that “[n]o action shall be brought with respect
12 to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in
13 any jail, prison, or other correctional facility until such administrative remedies as are available are
14 exhausted.” 42 U.S.C. § 1997e(a). Under this section, an action must be dismissed unless the
15 prisoner exhausted his available administrative remedies before he filed suit, even if the prisoner
16 fully exhausts while the suit is pending. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.
17 2002). “[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life,
18 whether they involve general circumstances or particular episodes, and whether they allege
19 excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion of
20 all “available” remedies is mandatory; those remedies need not meet federal standards, nor must
21 they be “plain, speedy and effective.” Id. at 524; Booth v. Churner, 532 U.S. 731, 739-40 & n.5
22 (2001). Even when the prisoner seeks relief not available in grievance proceedings, notably
23 money damages, exhaustion is a prerequisite to suit. Id. at 741. The purposes of the exhaustion
24 requirement include allowing the prison to take responsive action, filtering out frivolous cases and
25 creating an administrative record. See Porter, 534 U.S. at 525.
26 A prisoner’s failure to exhaust is a valid ground for dismissal, so long as no exception to
27 exhaustion applies. Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.), cert. denied, 540 U.S. 810
1 prisoner has conceded that he did not exhaust administrative remedies. Id.
2 Here, some of the claims raised in Plaintiff’s complaint do not appear to have been
3 exhausted through the administrative grievance procedure at SQSP. Plaintiff simply claims that
4 he “lodged a (602) administrative grievance form correlative with the COVID-19 debacle,” and
5 “log # S[Q] HC 20000860” was “Denied on 11/24/20.” Dkt. 1 at 5 (brackets added). Plaintiff
6 does not specifically address exhaustion of the grievance procedure at SQSP as to each claim, and
7 instead he claims, in a conclusory fashion that his grievance addressed the “COVID-19 debacle.”
8 Id. Therefore, the Court is unable to determine if Plaintiff satisfied the administrative remedies
9 exhaustion requirement on each of the claims he alleges, prior to filing his suit.
10 Accordingly, because some of Plaintiff’s claims may not be exhausted, his complaint is
11 DISMISSED with leave to amend in order to prove that he exhausted all of his claims against each
12 Defendant before he filed this action. If Plaintiff did exhaust his administrative remedies with
13 respect to any or all of those claims before filing this action, he may amend his complaint to so
14 allege, as set forth below.
15 III. CONCLUSION
16 For the foregoing reasons, the Court orders as follows:
17 1. Plaintiff’s complaint is DISMISSED with leave to amend in order to give him the
18 opportunity to file a simple, concise and direct amended complaint which:
19 a. States clearly and simply each claim he seeks to bring in federal court as
20 required under Rule 8, and he should:

21
i. Set forth each claim in a separate numbered paragraph;
22
ii. Identify each Defendant and the specific action or actions each
23 Defendant took, or failed to take, that allegedly caused the
deprivation of Plaintiff’s constitutional rights; and
24
iii. Identify the injury resulting from each claim;
25
b. Explains how he has exhausted his administrative remedies as to each
26
claim as against each Defendant before he filed this action as required by 42 U.S.C. § 1997e(a),
27
1 c. Only alleges those claims that are properly joined under Rule 20(a)
2 (concerning joinder of claims and Defendants) or, stated differently, the amended complaint may
3 only allege claims that:

4
i. Arise out of the same transaction, occurrence, or series of
5 transactions or occurrences; and

6 ii. Present questions of law or fact common to all Defendants;
7 d. Does not make conclusory allegations linking each Defendant by listing
8 them as having direct involvement to his claims without specifying how each Defendant was
9 linked through their actions; and
10 e. Does not name any Defendant who did not act but is linked solely in his or
11 her respondent superior capacity or against whom Plaintiff cannot allege facts that would establish
12 either supervisorial or municipal liability.
13 2. Within twenty-eight (28) days from the date of this Order, Plaintiff shall file his
14 amended complaint as set forth above. Plaintiff must use the attached civil rights form, write the
15 case number for this action—Case No. 21-cv-0921-YGR (PR)—on the form, clearly label the
16 complaint “Amended Complaint,” and complete all sections of the form. Because the amended
17 complaint completely replaces the original complaint, Plaintiff must include in it all the claims he
18 wishes to present. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S.
19 915 (1992). He may not incorporate material from the original complaint by reference. If Plaintiff
20 wishes to attach any additional pages to the civil rights form, he shall maintain the same format as
21 the form, i.e., answer only the questions asked in the “Exhaustion of Administrative Remedies”
22 section without including a narrative explanation of each grievance filed. Plaintiff’s failure to
23 file his amended complaint by the twenty-eight-day deadline or to correct the
24 aforementioned deficiencies outlined above will result in the dismissal of this action without
25 prejudice.
26 3. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court
27 informed of any change of address and must comply with the Court’s orders in a timely fashion.
1 while an action is pending must file a notice of change of address promptly, specifying the new
2 || address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: (1) mail
3 directed to the pro se party by the Court has been returned to the Court as not deliverable, and
4 (2) the Court fails to receive within sixty days of this return a written communication from the pro
5 se party indicating a current address. See L.R. 3-11(b).
6 4. The Clerk of the Court shall send Plaintiff a blank civil rights complaint form along
7 with his copy of this Order.
8 IT IS SO ORDERED.
9 || Dated: 7/26/2021
10 Lypent Haptrff lees —
DGE YVONNE GONZALEZ ROGERS
United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10068431. Public record. Not legal advice.