The opinion of the court was delivered by: LEO PAPAS, Magistrate Judge
REPORT AND RECOMMENDATION GRANTING DEFENDANTS' MOTION TO DISMISS
AND FOR MORE DEFINITE STATEMENT (10-1)
On June 23, 2005, Plaintiff Ricky Gray (hereafter "Plaintiff"),
filed a Third Amended Complaint (hereafter "TAC") for violations
of 42 U.S.C. § 1983 (hereafter "§ 1983') against Defendants
Jeanne Woodford, J.P. Giurbino, R. Zaragoza, G. Gonzalez, J.P.
Gonzalez, C. Cook, D.J. Degeus, D. Dexter, Joe Doe, P.W.
Dougherty, G.H. Gonzalez, N. Grannis, Jesse, Gruillen, J.S. Hill,
C. Hudson, M.G. Loera, M. Maldonado, M. Master, D.S.P. Sidha,
J.D. Stokes, R. Gibson, N.S. Rodriguez, A.V. Trevino, E. Vargas,
Ben Eason, C.L. Parks, J.F. Salazar and T. Willis (hereafter
"Defendants") in the United States District Court Central
District of California. On July 13, 2005, the Central District of
California transferred the case to this Court. On September 16,
2005, Defendants filed a Motion to Dismiss Plaintiff's TAC and for a
More Definite Statement.*fn1
Plaintiff has not filed an
Opposition to Defendants' Motion.
The Court, having reviewed Defendants' Motion, the TAC, the
record in this case, and GOOD CAUSE APPEARING, HEREBY RECOMMENDS:
1. Plaintiff's TAC
Plaintiff's 32-page TAC*fn2
sets forth numerous
disorganized miscellaneous allegations regarding his
incarceration at Centinela State Prison. These allegations
include the following: violations of "director's rules," denial
of his grievances and appeals for numerous pretextual reasons,
seizure of his personal property, retaliation for filing
grievances and appeals, searches and seizures of property of
handcuffing procedures, procedures to
provide inmates in Administrative Segregation with law library
materials, reassignment of his job duties, curtailment of visits
and received packages during a lockdown of black inmates, the
composition of the prison population containing primarily
hispanic inmates and too few black staff members, lack of
impartiality in validation of gang involvement, special treatment
afforded hispanic inmates receiving packages and canteen
purchases during prison lockdowns, not having a black inmate
Men's Advisory Committee representative, the length of time
inmates are held in Administrative Segregation, failure to reprimand prison staff who fail to follow prison
procedures, and corruption of prison staff. Many of the
allegations in the TAC do not appear to pertain to Plaintiff
personally, or do not appear to be actionable under § 1983.
2. Defendants' Motion to Dismiss
Defendants argue that Plaintiff's TAC should be dismissed.
A motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. (hereafter "FRCP") 12 (b) (6) tests the legal
sufficiency of the claims in the complaint. A claim can only be
dismissed if it "appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim that would entitle
him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957);
Hishon v. King & Spaulding, 467 U.S. 69, 73 (1974). The court
must accept as true all material allegations in the complaint, as
well as reasonable inferences to be drawn from them, and must
construe the complaint in the light most favorable to the
plaintiff. N.L. Industries, Inc. v. Kaplan, 792 F.2d 896, 898
(9th Cir. 1986); Parks School of Business, Inc. v. Symington,
51 F.3d 1480, 1484 (9th Cir. 1995); Cholla Ready Mix, Inc. v.
Civish, 382 F.3d 969, 973 (9th Cir. 2004) ("[U]nder Fed.R.Civ.P.
12 (b) (6), [the Court must] accept all facts alleged in the
complaint as true and construing them in the light most favorable
to the plaintiff,") (citing Karam v. City of Burbank,
352 F.3d 1188, 1192 (9th Cir. 2003).
The court looks not at whether the plaintiff will "ultimately
prevail but whether the claimant is entitled to offer evidence to
support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236
(1974). Dismissal is not warranted unless it "appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim that would entitle him to relief." Conley, 355 U.S. at 45-46.
A complaint is subject to dismissal if "one cannot determine
from the complaint who is being sued, for what relief, and on
what theory, with enough detail to guide discovery." McHenry v.
Renne 84 F.3d 1172, 1178 (9th Cir. 1996)
Where a plaintiff appears in propria persona in a civil
rights case, the court must construe the pleadings liberally and
afford the plaintiff any benefit of the doubt. Karim-Panahi v.
Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). The
rule of liberal construction is "particularly important in civil
rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th
Cir. 1992). In giving liberal interpretation to a pro se civil
rights complaint, however, the court may not "supply essential
elements of claims that were not initially pled." Ivey v. Board
of Regents of the University of Alaska, 673 F.2d 266, 268 (9th
Cir. 1982). "Vague and conclusory allegations of official
participation in civil rights violations are not sufficient to
withstand a motion to dismiss." Id.; see also Jones v.
Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir.
1984) (conclusory allegations unsupported by facts are
insufficient to state a claim under § 1983). "The plaintiff must
allege with at least some degree of particularity overt acts
which defendants engaged in that support the plaintiff's claim."
Jones, 733 F.2d at 649 (internal quotation omitted).
Nevertheless, the court must give a pro se litigant leave to
amend his complaint unless it is "absolutely clear that the
deficiencies of the complaint could not be cured by amendment."
Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987). Thus,
before a pro se civil rights complaint may be dismissed, the
court must provide the plaintiff with a statement of the complaint's
deficiencies. Karim-Panahi, 839 F.2d at 623-24.
In this case, Plaintiff's 32-page TAC*fn4 contains
numerous, scattered miscellaneous allegations regarding events
that transpired at Centinela State Prison. The TAC is not
logically organized. Prior to Plaintiff's allegations, Plaintiff
indicates that he brings a claim for "First Amendment right to
seek redress as reading material as religious, denial of equal
protection under the Law, retaliation for seeking redress,
discriminatory practice as cited under California directors
rules, as cruel and unusual punishment due process violations
under director's rules of 3337 (a) (b) (c), violation of Liberty
interest." (TAC at 11) However, from the numerous miscellaneous
disorganized allegations contained in the TAC, the Court is
unable to ascertain which allegations pertain to which claims,
nor to whom the allegations and claims are directed.
Nevertheless, it appears that Plaintiff may be able to allege,
and possibly prove, facts in support of his claims. Therefore,
the Court RECOMMENDS that Defendants' Motion to Dismiss be
GRANTED and Plaintiff be given leave to amend his TAC. The Court
further RECOMMENDS that Plaintiff be advised that his amended
complaint shall separately state each alleged violation of §
1983, the facts supporting each alleged violation, and which
Defendant(s) committed the alleged violation.
3. Defendants' Motion for More Definite Statement
Defendants argue that Plaintiff should be ordered to provide a
more definite statement regarding his claims and allegations
under FRCP 8 and 10. FRCP 8 states in pertinent part:
(a) A pleading which sets forth a claim for relief . . .
shall contain . . .
(2) a short and plain statement of the claim showing
that the pleader is entitled to relief . . .
(e) Each averment of a pleading shall be simple,
concise and direct . . ."
FRCP 10 states in pertinent part:
. . .
(b) All averments of a claim or defense shall be made
in numbered paragraphs, the contents of each of which
shall be limited as far as practicable to a statement
of a single set of circumstances.
A plaintiff's claims must be set forth in short and plain terms
simply, concisely and directly. See Swierkiewicz v. Sorema
534 U.S. 506
, 514 (2002) ["Rule 8(a) is a starting point of a
simplified pleading system, which was adopted to focus on the
merits of a claim."] "A complaint should not contain preambles,
introductions, argument, speeches, explanations, stories,
griping, summaries and the like." McHenry 84 F.3d at 1178.
Plaintiff's TAC does not meet the standards set forth in FRCP 8
and 10 and case law regarding pleading a complaint. The TAC does
not contain a short and plain statement of Plaintiff's claims,
nor are the averments in the TAC simple, concise and direct.
Instead, the TAC consists of numerous lengthy, scattered,
disorganized and miscellaneous allegations and commentary on the
conditions of his, and other inmates', confinement at Centinela
State Prison. The TAC is unclear as to which allegations pertain
to which claims, and to whom the allegations and claims are
directed. Therefore, the Court and Defendants cannot be sure of
the exact nature of the claims being asserted by Plaintiff. As a
result, the Court RECOMMENDS that Defendants' Motion for a More Definite Statement be GRANTED and
that Plaintiff be ordered to file a Fourth Amended Complaint in
conformity with FRCP 8 and 10, and case law as noted herein. ...