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Barnett v. Torres

August 13, 2008

TROAS VOLTAIRE BARNETT, PLAINTIFF,
v.
MANUEL TORRES, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge

ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND

(Doc. 27)

I. SCREENING ORDER

Troas Voltaire Barnett ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint on August 9, 2005. (Doc. 1.) On January 11, 2006, Plaintiff filed his first amended complaint. (Doc. 19.) On January 10, 2007, the Court granted Plaintiff's motion to file a second amended complaint. (Doc. 26.) Plaintiff thereafter filed his second amended complaint on January 31, 2007 -- which is currently before the Court. (Doc. 27.)

A. Screening Requirement

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that Plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

B. Summary of Plaintiff's Second Amended Complaint

Plaintiff is a state prisoner at Kern Valley State Prison ("KVSP") in Delano, California. Plaintiff complains of acts that occurred when he was housed at California Substance Abuse Treatment Facility and State Prison ("SATF") in Corcoran, California and at California Correctional Institution ("CCI") Tehachapi, California.

Plaintiff names as defendants: SATF Warden Derral G. Adams; SATF Correctional Officers ("C/O") Manuel Torres, Angel Duran, Martin Gamboa, Johnny Mata, Harold Duncan, David Andres, Jack Hill, Brad Tweedy, David Norman, Tracy Jackson, Michael Pallares, Jason Barba, and John Does 1-6 & 18; David Smith; Doxie Facchinello; and John Does 8-10 & 12-17 who are "Medical Doctors, Registered Nurses, Medical Technical Assistants, Radiologists, Orthopedic Specialists ... employed by" SATF and CCI.

Plaintiff alleges that: on November 4, 2003, while housed at SATF, he was subjected to excessive force and his cell was ransacked by various correctional officers when he refused to enter a single occupancy shower with his cell mate; after the attack, Plaintiff was taken to the "CTC Emergency Room" where Doxie Facchinello cleansed and noted his wounds and John Doe #8 (Dr. D. Deering) stapled his head wound closed without prior testing, and released him for transfer from SATF to CCI; once at CCI, Plaintiff alleges he was not provided adequate follow-up medical care, nor was he provided due process as to his grievances and disciplinary hearing regarding the November 4, 2003 incident. Plaintiff seeks declaratory, compensatory, and punitive damages.

It should be noted that Plaintiff's second amended complaint states approximately twenty-three (23) pages of semi-chronological facts, followed by nineteen (19) pages of legal argument and citations, ending with thirteen (13) pages of "Claims for Relief" -- wherein Plaintiff requests a declaratory judgment and delineates which of his constitutional rights he believes were violated by various defendants' excerpted acts. The Court screens the second amended complaint for cognizable claims based on the constitutional violations alleged in Plaintiff's "Claims for Relief." The Court utilizes the delineations under Plaintiff's request for a declaratory judgment as a general framework for screening the second amended complaint, since they are the only place that Plaintiff states which of his constitutional rights he believes were violated by specific defendants, and some supportive facts. However, statements in this screening order are not intended, nor are they to be construed, to provide any declaratory judgment in this case.

The Court provides Plaintiff with the following law that might apply to his claims. However, it is Plaintiff's duty to specify his claims for relief against each defendant and their full factual basis. The Court will not guess as to which additional facts Plaintiff believes support his alleged constitutional violation(s). Plaintiff will be given opportunity to file a third (and final) amended complaint wherein he may be able to cure deficiencies noted herein. Should he choose to file a third amended complaint, Plaintiff would do well to state each constitutional right he feels was violated, by which defendant(s), and delineate each fact upon which he bases his allegations -- refraining from stating legal argument and superfluous facts.

C. Pleading Requirements

1. Federal Rule of Civil Procedure 8(a)

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Id. at 514. "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.'" Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) ("'Pleadings need suffice only to put the opposing party on notice of the claim . . . .'" (quoting Fontana v. Haskin, 262 F.3d 871, 977 (9th Cir. 2001))). However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

2. Federal Rule of Civil Procedure 18(a)

"The controlling principle appears in Fed.R.Civ.P. 18(a) 'A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party.' Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g)." George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

Plaintiff is advised that if he chooses to file a third amended complaint, and fails to comply with Rule 18(a), the Court will count all frivolous/non-cognizable unrelated claims that are dismissed therein as strikes such that he may be barred from filing in forma pauperis in the future.

3. Linkage Requirement

The Civil Rights Act under which this action was filed provides:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth Circuit has held that "[a] person 'subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In order to state ...


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