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Tubach v. Lahimore

November 2, 2010

ISABEL TUBACH, PLAINTIFF,
v.
LAHIMORE, ET AL. DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER DISMISSING COMPLAINT AND CERTAIN CLAIMS WITH PREJUDICE AND ALLOWING LEAVE TO AMEND ON CERTAIN CLAIMS (Doc. 13)

I. SCREENING ORDER

Plaintiff, Isabel Tubach, ("Plaintiff") was a state prisoner who is currently proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed her original Complaint on May 21, 2010 (Doc. 1), which was dismissed for Plaintiff's failure to sign the pleading in an order which also provided the standards for the claims that Plaintiff appeared to intend to make (Doc. 9). After requesting and receiving an extension, Plaintiff filed her First Amended Complaint on September 8, 2010 -- which is presently before th Court for screening. (Doc. 13.)

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).

B. Summary of Plaintiff's Complaint

Plaintiff complains of acts that occurred while she was an inmate at Central California Women's Facility ("CCWF") in Chowchilla, California. Plaintiff has named only three persons as defendants in this action: CCWF Associate Warden and Litigation Coordinator, Javier Cavazos; Attorney General, Jerry Brown; and Appeals Coordinator Ms. Brown. Plaintiff alleges that Attorney General Jerry Brown put Officer Gonzales (not a named defendant in this action) "in charge" of her because she used to work at the "Central Intelligence American [sic] (CIA)." Plaintiff alleges that Officer Gonzales harasses her and that his actions amount to cruel and unusual punishment and violation of her rights to equal protection. (Doc. 13, 1st Amd. Compl., p. 12.) Plaintiff alleges that she has sent letters to Governor Schwarzenegger and that he sends them to Warden Cavazos. (Id. at p. 9-10.) Plaintiff seeks authorization to take the named defendants "to court," that the Attorney General dismiss Officer Gonzales, that an order issue to stop the cruel and unusual punishment that she is being subjected to, and that she be allowed to obtain parole.

Plaintiff fails to state a cognizable claim. Most of her allegations are irreparably flawed and will never be able to be corrected so as to state a cognizable claim for violation of her constitutional rights. However, Plaintiff may be able to name Officer Gonzales as a defendant in this action and amend to correct the deficiencies so as to state a cognizable claim against Officer Gonzales. With this in mind, and for the reasons discussed herein, Plaintiff's First Amended Complaint is dismissed and her claims against the three named Defendants (CCWF Associate Warden and Litigation Coordinator, Javier Cavazos; Attorney General, Jerry Brown; and Appeals Coordinator Ms. Brown) are dismissed with prejudice. However, Plaintiff is being given leave to file a Second Amended Complaint solely for the purpose of pursuing any claims she may have against Officer Gonzales.

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. 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).

"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 must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2).

Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) quoting 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 conclusion are not. Iqbal. at 1949; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 556-557.

If she chooses to file a second amended complaint, Plaintiff should endeavor to make it as concise as possible. She should merely state which of her constitutional rights she feels were violated by Officer Gonzales and its factual basis.

2. 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 a claim for relief under section 1983, Plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of Plaintiff's federal rights.

3. Federal Rule of Civil Procedure 18(a)

Fed.R.Civ.P. 18(a) states that "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).

It appears that Plaintiff's claims might be related in as much as Attorney General Jerry Brown might be in a position of supervision over Warden Cavazos and/or Appeals Coordinator Brown. Though, as subsequently discussed Plaintiff is not able to state a claim against any of these three named Defendants. Plaintiff is advised that the fact that claims are premised on harassing motives and/or deliberate indifference to Plaintiff's serious medical needs do not make them related. Claims are related where they are based on the same precipitating event, or a series of related events caused by the same precipitating event, or claims against a common defendant. Plaintiff is advised that if she chooses to file a second amended complaint, and fails to comply with Rule 18(a), all unrelated claims will be subject to dismissal.

4. Exhibits

Plaintiff attached several pages of exhibits to the First Amended Complaint.

The Court is not a repository for the parties' evidence. Originals, or copies of evidence (i.e., prison or medical records, witness affidavits, etc.) need not be submitted until the course of litigation brings the evidence into question (for example, on a motion for summary judgment, at trial, or when requested by the Court). If Plaintiff attaches exhibits to a second amended complaint, each exhibit must be specifically referenced. Fed. R. Civ. Pro. 10(c). For example, Plaintiff must state "see Exhibit A" or something similar in order to direct the Court to the specific exhibit Plaintiff is referencing in support of any given allegation. If the exhibit consists of more than one page, Plaintiff must reference a specific page of the exhibit in her pleading (i.e. "See Exhibit A, page 3").

Further, the note to Warden Cavazos which Plaintiff attached as an exhibit is dated the day before Plaintiff signed and mailed her First Amended Complaint for filing with this Court such that it would be impossible for Warden Cavazos' actions or inactions to that note to form the basis for liability in this action. Likewise, liability cannot possibly attach to Governor Schwarzenegger based on the note to "Mr. Governor" that Plaintiff attached as an exhibit, which while not dated, references an event that occurred on ...


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