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Susan Mae Polk v. Pittman

April 6, 2012

SUSAN MAE POLK,
PLAINTIFF,
v.
PITTMAN, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DISMISSING FIRST AMENDED COMPLAINT, WITH LEAVE TO AMEND (ECF No. 5)

ORDER DENYING MOTION TO FILE SECOND AMENDED COMPLAINT AND STRIKING SECOND AMENDED COMPLAINT (ECF Nos. 19, 20)

Plaintiff Susan Mae Polk ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on May 6, 2011. Currently before the Court is Plaintiff's first amended complaint, filed May 13, 2011. (ECF No. 5.) On October 17, 2011, Plaintiff filed a motion to file a second amended complaint, and a second amended complaint was lodged. (ECF Nos. 19, 20.)

I. Motion to File Amended Complaint

Plaintiff filed a motion to file a second amended complaint, however the lodged second amended complaint is only a single page with no complaint attached. Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. Otherwise, a party may amend only by leave of the court or by written consent of the adverse party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). Given that Plaintiff's first amended complaint is being dismissed, with leave to amend, Plaintiff's motion for leave to file a second amended complaint shall be denied as moot.

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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

In determining whether a complaint states a claim, the Court looks to the pleading standard under Federal Rule of Civil Procedure 8(a). Under 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)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955 (2007)).

Under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of 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). "[A] complaint [that] pleads facts that are 'merely consistent with' a defendant's liability . . . 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555).

III. Discussion

Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at the Valley State Prison for Women in Chowchilla, California. Plaintiff's first amended complaint is eighty five pages long and alleges claims against sixty three defendants and forty Does at three different correctional institutions.

Plaintiff is bringing unrelated claims against unrelated parties, which is not permitted. Fed. R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). As an initial matter, Plaintiff may bring a claim against multiple defendants so long as (1) the claim arises out of the same transaction or occurrence, or series of transactions and occurrences, and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America, 623 F.2d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined under Rule 20(a) will the Court review the other claims to determine if they may be joined under Rule 18(a), which permits the joinder of multiple claims against the same party.

Plaintiff's amended complaint will, by this order, be dismissed with leave to amend, and the Court will permit Plaintiff to select the claim she wishes to pursue in this action. If Plaintiff alleges multiple claims in her amended complaint which violate the applicable joinder rules, the Court will choose the operative claim and dismiss the unrelated claims. Thus, it behooves Plaintiff to make a good faith determination regarding which claim she seeks to pursue in this action and which other claims should be omitted because they violate the joinder rules.

In the paragraphs that follow, the Court will provide Plaintiff with the legal standards that appear to apply to her claims. Plaintiff should carefully review the standards and amend only those claims that she believes, in good faith, are cognizable.

IV. Legal Standards

A. First Amendment

1. Freedom of Speech

The Supreme Court has long recognized that "(l)awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 1060 (1948) overruled on other grounds by McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454 (1991); see also Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804 (1974); Wolff v. McDonnell, 418 U.S. 539, 555, 94 S. Ct. 2963, 2974 (1974). "The fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration." Jones v. North Carolina Prisoners' Labor Union Inc.,, 433 U.S. 119, 125, 97 S. Ct. 2532, 2537-38 (1977). While an inmate does retain First Amendment rights that are not ...


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