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Alan Devon v. Diaz

April 1, 2011

ALAN DEVON,
PLAINTIFF,
v.
DIAZ, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S.Austin United States Magistrate Judge

ORDER DISMISSING FOURTH AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH ONE FINAL OPPORTUNITY TO AMEND (Doc. 26.) THIRTY DAY DEADLINE TO FILE FIFTH AMENDED COMPLAINT

I. BACKGROUND

Alan DeVon ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on November 29, 2007. (Doc. 1.) On February 8, 2008, Plaintiff filed the First Amended Complaint. (Doc. 12.) On April 22, 2008, Plaintiff requested leave to amend the complaint, which was granted by the Court, and the Second Amended Complaint was filed on June 27, 2008. (Docs. 13, 15, 16.) On October 27, 2008, Plaintiff requested leave to amend the complaint, which was granted by the Court, and the Third Amended Complaint was filed on March 2, 2009. (Docs. 17, 22, 23.) The Court screened the Third Amended Complaint pursuant to 28 U.S.C. § 1915A and entered an order on December 9, 2009, dismissing the Third Amended Complaint for failure to state a claim, with leave to amend. (Doc. 24.) On December 23, 2009, Plaintiff filed the Fourth Amended Complaint, which is now before the Court for screening. (Doc.26.)

II. 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 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.

III. SUMMARY OF FOURTH AMENDED COMPLAINT

Plaintiff is presently incarcerated at the California State Prison-Los Angeles in Lancaster, California. The events at issue allegedly occurred while Plaintiff was incarcerated at the California Substance Abuse Treatment Facility and State Prison ("SATF") in Corcoran, California. In the Fourth Amended Complaint, Plaintiff names defendants R. Diaz (Warden), Lieutenant ("Lt.") Atkins, J. Prudhomme (Warden), and CCII A. Fouch ("Defendants"). Plaintiff requests monetary damages and injunctive relief via an order requiring training in state prisons addressing the American With Disabilities Act ("ADA").

Plaintiff alleges as follows in the Fourth Amended Complaint.

Ad-Seg Detention Plaintiff was detained in administrative segregation ("Ad-Seg") for three days and nights by Warden R. Diaz because of Plaintiff's suspected involvement in an incident concerning a lost food tray. Upon realizing that Plaintiff was hearing-impaired and therefore had no involvement in the incident, Warden R. Diaz removed Plaintiff from Ad-Seg. As a result of his detention, Plaintiff lost property and his job, and suffered emotional distress.

Kosher Foods

Lt. Atkins and Warden J. Prudhomme denied Plaintiff his religious right to eat Kosher foods. Plaintiff was also denied Kosher foods when Warden R. Diaz placed him in Ad-Seg. Plaintiff lost twenty-one pounds and was on the verge of a heart stoppage.

Medical Care

Lt. Atkins denied Plaintiff medical care when he lost his mobility. Defendants let Plaintiff lie "man down" for more than eighteen hours, laughed at him, and let him lie on the floor in pain. Now it has been proven that Plaintiff has a herniated disc in his back.

Access to Phone

For more than a year, Plaintiff was denied access to the T.D.D. phone. Warden R. Diaz, CCII Fouch, and Warden J. Prudhomme discriminated against Plaintiff by not providing ADA telephone access.

IV. PLAINTIFF'S CLAIMS

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. "Section 1983 . . . creates a cause of action for violations of the federal Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted).

A. Violation of Rule 18

Plaintiff alleges multiple claims in the Fourth Amended Complaint that are largely unrelated. Plaintiff may not proceed in one action on a myriad of unrelated claims against different staff members. "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 was instructed in the Court's Screening Order of December 9, 2009, not to pursue unrelated claims in his amended complaint. Despite the Court's admonition, Plaintiff 's Fourth Amended Complaint recites distinctly different events involving different defendants, in violation of Rule 18(a). At this juncture, the Court would ordinarily recommend that this action proceed on some related claims, and that the unrelated claims be dismissed. However, as discussed below, the Court finds that Plaintiff fails to state any cognizable claims in the Fourth ...


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