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Anthony R. Turner v. R. Thomas

June 6, 2011

ANTHONY R. TURNER, PLAINTIFF,
v.
R. THOMAS, ET AL., DEFENDANTS.



ORDER

Plaintiff, a prisoner proceeding pro se, filed this civil rights action under 42 U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and two motions requesting that the court order prison officials to return his legal property to him. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff's application for leave to proceedin forma pauperis, dckt. No. 5, makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).

Pursuant to 28 U.S.C. § 1915A, the court shall review "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). "On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).

A district court must construe a pro se pleading "liberally" to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). While detailed factual allegations are not required, "[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 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570).

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Id. (citations and quotation marks omitted). Although legal conclusions can provide the framework of a complaint, they must be supported by factual allegations, and are not entitled to the assumption of truth. Id. at 1950.

The court has reviewed plaintiff's complaint pursuant to 28 U.S.C. § 1915A and finds it must be dismissed with leave to amend. Plaintiff purports to bring claims of "illegal/unlawful" retaliation "constituting cruel and unusual punishment, and specific race/gender/disability discrimination." Compl. at 6.*fn1 Plaintiff also claims to have the "right to be free from any violence/or intimidation by threat of violence" and requests "criminal certification" of the defendants. Id. Plaintiff claims that "the defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff or engaged in other verbal, visual or physical conduct of a sexual nature or of a hostile nature based on gender." Id. at 7. Plaintiff claims that defendant Salinas, warden, is responsible for "racial policies and practices" and is liable for the acts of her subordinates. Id. at 9. Plaintiff alleges that defendants MacDougall, Thomas, Razvodosky, Martinez, Almagar, Landingham, Heinrich, Rivera, Grant, David, Duprie, Cando, Johnson, Ortiz, Huskens, Patchen, Gaines, Bentz, Manning, Bramasco, and Lor "engaged in and conspired to engage in unauthorized illegal and unbecoming conduct to willfully commit, and or abuse their power to commit criminal offenses of perjury, fraud, extortion, false imprisonment by illegal restraint, defamation, [and] slander . . . ." Id. at 10.

While most of the complaint takes the form of legal conclusions, plaintiff also makes the following factual allegations, some more specific than others. He claims that defendant MacDougal said to him "hey you black inmate with the pony tail," and told plaintiff to take out his hair tie and that he would charge $4 to plaintiff's inmate trust account for destroying state property. Id. at 13. Plaintiff claims MacDougal filed a false rules violation report against plaintiff in order to take funds from plaintiff's trust account. Plaintiff claims he refused to sign the report and MacDougal applied excessive force, which was condoned by defendant Martinez. Id. at 14-15. Plaintiff alleges defendant Thomas harassed and battered plaintiff through a rough pat search by kicking the inside of his ankles. Id. at 15-16. Plaintiff claims Russel and Zuniga obstructed his inmate appeals and that MacDougal, Thomas, Martinez, Almager, Landingham, and Rozvoditiskiy retaliated against him. Id. at 17. Plaintiff claims Marquez refused to process his legal mail. Id. at 21-22. Plaintiff alleges defendants Campo, Johnson, Ortiz and Manning provided plaintiff with a bathroom area that contained a toilet filled with feces, urine, and maggots. Id. at 22.

The court finds the allegations in plaintiff's complaint so vague and conclusory that it is unable to determine whether the current action is frivolous or fails to state a claim for relief. The court has determined that the complaint does not contain a short and plain statement as required by Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support plaintiff's claim. Id. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed.

Moreover, it appears that plaintiff has improperly joined unrelated claims and defendants. Plaintiff may join multiple claims if they are all against a single defendant. Fed. R. Civ. P. 18(a). However, unrelated claims against different defendants must be pursued in separate lawsuits. "The controlling principle appears in Fed. R. Civ. P. 18(a): 'A party asserting a claim . . . may join, [] as independent or as alternate claims, as many claims . . . 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); see also Fed. R. Civ. P. 20(a)(2) (joinder of defendants not permitted unless both commonality and same transaction requirements are satisfied). Because the complaint appears to allege unrelated claims against different defendants, plaintiff must file an amended complaint correcting this defect. Additionally, plaintiff is hereby informed that he may not change the nature of this suit by alleging new, unrelated claims in an amended complaint. George, 507 F.3d at 607 (no "buckshot" complaints).

Moreover, the complaint does not includes sufficient factual allegations to state a plausible claim for relief. In an amended complaint, plaintiff must identify as a defendant only persons who personally participated in a substantial way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act, participates in another's act or omits to perform an act he is legally required to do that causes the alleged deprivation).

The allegations must be short and plain, simple and direct and describe the relief plaintiff seeks. Fed. R. Civ. P. 8(a); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002). A long, rambling pleading, including many defendants with unexplained, tenuous or implausible connection to the alleged constitutional injury or joining a series of unrelated claims against many defendants very likely will result in delaying the review required by 28 U.S.C. § 1915 and an order dismissing plaintiff's action pursuant to Rule 41 of the Federal Rules of Civil Procedure for violation of these instructions.

To the extent plaintiff intends to pursue claims based on equal protection, due process, inmate appeals, retaliation, conspiracy, excessive force, his conditions of confinement, or on supervisor liability, the ...


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