The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE
Plaintiff Ronald Adams is a state prisoner proceeding pro seand in forma pauperisin this civil rights action pursuant to 42 U.S.C. § 1983. Pursuant to his own motion, plaintiff filed a Second Amended Complaint on December 10, 2007. Plaintiff consented to jurisdiction by a U.S. Magistrate Judge on May 2, 2007.
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. Plaintiff's Complaint, in General
In his lengthy, vague, and often confusing second amended complaint, plaintiff both provides extensive detail regarding his May 23, 2005, altercation with correctional officers and its aftermath, and omits other details, such as the nature of the grievance(s) that defendant Altnow refused to process and the context for plaintiff's altercation with defendant Moore, including prior staff complaints and the nature of the bad blood between Moore and plaintiff. Plaintiff then asserts at least fourteen causes of action, none of which is specifically tied to the factual allegations preceding them and about half of which are not cognizable in a § 1983 action.
If plaintiff chooses to amend the complaint again, as he is permitted to do pursuant to this order, he must correlate his claims for relief with the factual basis underlying each one, demonstrating specifically how the conditions of which he complains have resulted in each deprivation of plaintiff's constitutional rights. To accomplish this objective, plaintiff may find it helpful to reorganize his complaint to set forth each claim individually, followed by the relevant supporting allegations. Organizing the complaint in this way may also assist plaintiff in identifying and removing irrelevant or unnecessary factual allegations and duplicative or unsupported causes of action. By simplifying and shortening his complaint, plaintiff will enable the court to evaluate his claims and the facts supporting each one. Plaintiff's third amended complaint may not exceed twenty-five pages.
Plaintiff is reminded that "Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to § 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). 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. P. 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. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Plaintiff must set forth sufficient factual matter accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555. While factual allegations are accepted as true, legal conclusions are not. Ibid.
Although accepted as true, "[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level." Id. at 555 (citations omitted). A plaintiff must set forth "the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. at 555-56 (internal quotation marks and citations omitted). To adequately state a claim against a defendant, plaintiff must set forth the legal and factual basis for his claim.
In screening a complaint, 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." Neitzke 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).
Finally, the court would be remiss if it failed to comment on the tone of plaintiff's complaint, which suggests that several of plaintiff's claims may be motivated by a desire to discipline or embarrass correctional officers who plaintiff believes may have violated prison rules or regulations, demonstrated poor judgment, or revealed unsavory or idiosyncratic personal characteristics. Plaintiff is reminded that the purpose of a § 1983 action is to vindicate plaintiff's constitutional rights, not to provide a forum for attacking prison personnel.
B. Summary of Complaint--Underlying Facts*fn1
Plaintiff attributes the incident giving rise to this action to the fall-out from an outdated appliance form. Inmates complete appliance forms to order appliances through the prison property office. As plaintiff explains the procedure, the warden's signature is printed on them as authorization for the inmate's purchase. When defendant Vazquez was appointed Wasco's warden in 2003, Vazquez had determined to use the existing supply of appliance forms, which bore the name of the prior warden, before printing new ones bearing her name. Although the printed supply ran out sometime in 2004, property officers continued to use the outdated form, photocopying it as additional forms were needed. Because Vazquez had announced her determination to continue to use the outdated forms at a 2004 warden's meeting with Facility A, that the forms still bore the prior warden's name was common knowledge both to inmates and prison personnel.
On May 23, 2005, plaintiff, who now resides at Folsom Prison, was an inmate in Facility A at Wasco State Prison ("Wasco"). Noting that the supply of several forms, including appliance forms, was nearly gone, Facility A's building clerk sent plaintiff to the Property Office to obtain additional forms. Plaintiff carried samples of the forms that were needed.
Having been told to wait while defendant Alvidrez, the property officer, obtained forms for him, plaintiff lingered outside the adjacent program office with other waiting inmates. Defendant Moore left the program office and confronted plaintiff, demanding an explanation for his presence. (Plaintiff and Moore had a history of animosity predating the incident set forth in this complaint.) Hearing plaintiff's explanation, Moore demanded to see the papers that plaintiff carried and announced that the appliance form was a forgery.
When plaintiff attempted to explain the continued use of the outdated form and "grab[bed] for his forms back," Moore told plaintiff that he was out of bounds. Plaintiff replied that he wasn't because "it wasn't mark[ed] out of bounds." Moore then directed plaintiff to turn and be handcuffed, despite plaintiff's protests that the office was only four feet away and they could walk in so defendant McEwen could confirm the propriety of plaintiff's form. After Moore indicated that plaintiff was about to "make a bad situation worse," plaintiff allowed Moore to handcuff him. Moore then cuffed the plaintiff tightly enough to cut off blood circulation to plaintiff's hands.
Moore escorted plaintiff to a holding cage inside the program office, directly opposite defendant Berry's office. As Moore unlocked the cage, defendant DeShields moved in behind plaintiff as back-up. Hoping Berry would intervene, plaintiff again complained of the cuffs' tightness. Berry did not respond but DeShields pushed plaintiff closer to the wall. Plaintiff then yelled for help. In response, Moore and DeShields threw plaintiff to the floor, with Moore using his weight to tackle plaintiff. DeShields repositioned himself to stand on plaintiff's ankles. Berry and McEwen looked on. Plaintiff hit his head and lost consciousness.
Plaintiff regained consciousness with five or six officers on top of him, including defendants Alvidrez, Kitchen, Ellebarcht, and DeShields. After plaintiff was transferred to the cage, Berry entered to interview him and removed the handcuffs. Seeing abrasions and feeling numbness in his fingers, plaintiff yelled, "Do you see what he has done do you see?" Berry left the cage and did not return. She neither took plaintiff's statement nor photographed his injuries.
In the holding cage, plaintiff, who has schizoaffective disorder,*fn2 entered an emotional hyperactive state. Dr. Trinh, a psychologist, evaluated plaintiff and transferred him to a mental health crisis bed in the prison hospital, where plaintiff remained from May 23 to 25, 2005.
On May 26, 2005, Berry prepared a medical form 7219 and an administrative segregation ("AD SEG") form which falsely stated that defendant Strong had examined plaintiff on May 23. Although plaintiff had not filed any grievances or staff misconduct complaints relating to the May 23 incident, Berry's order recited that plaintiff was being transferred to AD SEG pending investigation of his allegations against staff. As a result, plaintiff was first escorted to the Facility A medical office for examination by Strong, a registered nurse, who completed two reports, one dated May 26, 2005, and one back-dated May 23, 2005, both of which reported no abrasions or marks on plaintiff's wrists. Plaintiff was then placed in AD SEG.
On May 27, 2005, plaintiff met with McEwen to review the AD SEG order. When McEwen stated that plaintiff would not have been transferred to AD SEG if he had not alleged staff misconduct, plaintiff protested that he had no opportunity to file any complaint.*fn3 McEwen then coerced plaintiff into a signed statement and videotape that Moore had not handcuffed him too tightly. That evening, plaintiff was released from AD SEG.
Thereafter, plaintiff received copies of CDC 837 incident reports filed by Moore, Kitchen, Alvidrez, Berry, DeShields, and Ellebracht. Each report stated only that plaintiff had willfully resisted a peace officer, resulting in a use of force. None specified that plaintiff had resisted Moore.
Defendant Borrero, appointed by defendant Johnson, presided over plaintiff's first disciplinary hearing in or about June 2005. Plaintiff objected to proceeding in the absence of defendant Moore, who was the reporting employee. Indicating that Moore was on vacation and not available, Borrero gave plaintiff the choice of proceeding without Moore or waiving his right to a hearing. When plaintiff refused to proceed in Moore's absence, insisting that Moore was not on vacation but on suspension for misconduct, Borrero determined that plaintiff had waived his rights and found plaintiff guilty.
On June 11, 2005, defendant Medina called plaintiff a "Chester," prison slang for a child molester. Although plaintiff has a 1981 rape conviction, it did not involve a minor.
On or about July 6, 2005, Johnson ordered a new disciplinary hearing for plaintiff, noting that Moore had been on vacation. Defendant Gutierrez was assigned to be the hearing officer.
On or about August 14, 2005, defendant Stoddard was assigned to be plaintiff's investigative employee ("I.E."). Plaintiff rejected Stoddard and requested the assignment of a different I.E. On or about August 20, 2005, Gutierrez rejected plaintiff's request for a different I.E. and convened the hearing. When plaintiff indicated his intent to walk out, Gutierrez "exploded and said look you asshole you were not assign no I.E. and if you mention it again I'll get the boys here to kick your fucking ass, do you understand me..." (complaint, ¶109). Plaintiff left the hearing room.
Gutierrez followed plaintiff from the hearing room, threw the hearing folder on the ground and attempted to provoke plaintiff to fight. Plaintiff stood face to face with Gutierrez, who was backed by Greer, Judd, Medina, and Moore. Gutierrez stated, "If you were on my fucking yard nobody would see you again. I wouldn't go for your shit of filing 602 staff complaint. You talking back to staff" (complaint, ¶113).
In September 2005, plaintiff filed a staff complaint, charging Moore with using excessive force and Strong with backdating the medical report.
On or about September 27, 2005, plaintiff's disciplinary hearing was again rescheduled. Defendant Scales was assigned as plaintiff's I.E.; defendant Cook was assigned as hearing officer.
Although plaintiff requested that Scales obtain a statement from Property Officer Hormecky regarding the use of the outdated appliance forms, Scales did not do so. Scales told plaintiff that he had been advised by an unidentified sergeant that seeking this information would be unwise.
Scales obtained re-written statements from Berry and Ellebracht. Berry stated that plaintiff attempted to frame Moore through false allegations of force. Ellebracht stated that plaintiff had thrown his head against the wall in an attempt to injure himself and frame Moore.
Cook refused to call Hormecky or Vazquez as witnesses, finding their testimony irrelevant. He found plaintiff guilty of willfully resisting a peace officer, assessing sixty-one days forfeiture of credits with a Division D offense classification and added six points to plaintiff's placement score level.
Plaintiff alleges that defendant Altnow failed to file plaintiff's complaint against Moore and requested that ...