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Jorge Alberto Ornelas v. Matthew Cate

June 4, 2012

JORGE ALBERTO ORNELAS,
PLAINTIFF,
v.
MATTHEW CATE, ET AL., DOC. 1 DEFENDANTS.



ORDER DISMISSING COMPLAINT, WITH LEAVE TO AMEND, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED THIRTY-DAY DEADLINE

Screening Order

I. Procedural History, Screening Requirement, and Standard

On December 20, 2010, Plaintiff Jorge Alberto Ornelas ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Doc. 1. In Plaintiff's complaint, he alleges conspiracy, violations of regulations and the inmate appeals process, access to courts, retaliation, denial of equal protection, violations of due process for placement in administrative segregation, excessive force, deliberate indifference to medical need and health and safety, failure to protect, overcrowding, fire hazards, and bad plumbing. See id.

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, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.

While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, plaintiff must demonstrate that each defendantpersonally 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). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S. Ct. at 1949-50; Moss, 572 F.3d at 969.

Section 1983 provides a cause of action for the violation of constitutional or other federal rights by those acting under color of state law. E.g., Patel v. Kent School Dist., 648 F.3d 965, 971 (9th Cir. 2011); Jones, 297 F.3d at 934. For eachdefendant named, plaintiff must show a causal link between the violation of his rights and an action or omission of the defendant. Iqbal,129 S. Ct. at 1949-50; Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). There is norespondeat superior liability under § 1983, and each defendant may only be held liable for misconduct directly attributed to him or her. Iqbal, 129 S. Ct. at 1949-50; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009).

II. Allegations in Plaintiff's Complaint

In Plaintiff's complaint, he names twenty-six defendants: Matthew Cate, Secretary; Scott Kernan, Under Secretary; George J. Giurbano, Director; D. Foston, Chief, Inmate Appeals; James D. Hartley, Warden; L.S. McEwen, Acting Warden; Scott Frauenheim, Assistant Warden; D.M. Mantel, Associate Warden; A. Lloren, Captain; T.E. Smith, Lieutenant; A.N. Rodriguez, Lieutenant; S.E. Tuck, Sergeant; Black; Deathriage; S. Bryant, CCII; Deselegua; K. Donaldson, CCI; R. Salsbury, CCI; A. Martinez, CCI; Sushama D. Taylor, PhD; Lanecia Richard, Program Manager; Ralyn Conner, Ombudsman; Robert Chapnick, MD; Sarah J. Davis, Librarian; Downs; and Newman. Compl. at 1, 9, 12, Doc. 1.

Plaintiff's styles his complaint as an incoherent and disjointed running log of excerpts from past inmate appeals. The Court will attempt to decipher Plaintiff's claims.

Plaintiff alleges conspiracy to interfere with civil rights; Mexican class-based discrimination for filing formal grievances, retaliation, and denial of equal protection. Id. at 9, 13. Plaintiff alleges that he did not have a hearing regarding placement in administrative segregation. Id. at 14. Plaintiff alleges "concealed evidence" regarding his appearance before the initial classification committee but that this incident was later resolved. Id. at 14-16. Plaintiff alleges involuntary transfer to higher security level institution. Id. at 16. Plaintiff alleges documents have been intentionally withheld. Id. Plaintiff alleges due process violations in regards to inmate appeals. Id. at 16-18. In Plaintiff's complaint, he includes excerpts of appeals from other inmates. Id. at 19-24. Plaintiff alleges placement in harm's way in a yard with "Bulldogs." Id. at 25. Plaintiff alleges Avenal State Prison has severe overcrowding, utilizing a gym with three-tier bunks. Id.

On August 15, 2009, visitation terminated early and Plaintiff and inmate Carlos Flores were being escorted to a building when an alarm sounded. Id. at 26. While on the ground because of the alarm, Sgt. Black instructed them to enter the building, and Plaintiff and inmate Flores entered the building and went directly to the bunk area. Id. at 26. Then inmate Flores asked if they (Plaintiff and Flores) were the only Mexicans in the building. Id. Minutes later, black inmates assaulted Plaintiff. Id. Plaintiff was disoriented and bleeding when Sgt. Deathriage responded and picked Plaintiff off the ground. Id. at 26-27. Sgt. Deathriage escorted Plaintiff outside to Sgt. King, who purposely slammed Plaintiff head first into the wall of the building, with a clear view of the dining hall, where other inmates were confined during the earlier riot. Id. at 27. Plaintiff was then taken outside the building, where he was body slammed against the wall, then slammed against the floor. Id. The degree of force from slamming Plaintiff's head into the wall rendered him semi-conscious, dizzy, disoriented, with large bumps and bruising. Id. Plaintiff was then slammed again with restraints on the ground and knees planted on his back. Id. The custody escorts knew Plaintiff was beaten by the black inmates and that he had two swollen black eyes, cuts inside his mouth from his teeth, bumps on his head, and swelling and bruising on his buttocks. Id. Custody intervened but refused his request verbally to be taken to the medical clinic for treatment. Id. at 27-28.

Plaintiff quotes statements by prisoners regarding overcrowding, fire hazards due to lack of sprinkler system and insufficient fire extinguishers, and inadequate plumbing. Id. at 29-31. Plaintiff and two other inmates signed the "statements by prisoners" section. Id. at 32. Plaintiff cites a memorandum dated December 13, 2010, advising inmates of a scabies outbreak. Id. at 33. Plaintiff contends that the prison should take steps to prevent the contamination. Id. at 34-35.

For relief, Plaintiff seeks an injunction to enforce procedural due process, stop unreasonable transfers, provide meaningful access to the law library, address overcrowding, and damages. Id. at 9-11.

III. Legal Standard and Analysis for Filing a Prisoner Class Action

Plaintiff cites inmate appeals from other inmates and two other inmates signed the complaint. Id. at 29-32. Although it appears that Plaintiff purports to bring this as a class action, he is not an attorney and he is proceeding without counsel. A pro se litigant simply cannot "fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4); Fymbo v. State Farm Fire & Casualty Co., 213 F.3d 1320, 1321 (10th Cir. 2000). While a non-attorney proceeding pro se may bring his own claims to court, he may not represent others. E.g., Simon v. Hartford Life, Inc., 546 F.3d 661, 664-65 (9th Cir. 2008); Fymbo, 213 F.3d at 1321; Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987). Therefore, this action shall proceed solely with Plaintiff, and only Plaintiff should make the allegations and sign his amended complaint.

IV. Legal Standard and Analysis for Plaintiff's Claims

A. Rule 8

Rule 8 of the Federal Rules of Civil Procedure mandates that a complaint include a "short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and that each allegation "be simple, concise, and direct." Fed. R. Civ. P. 8(d)(1) (emphasis added). A complaint that is so confusing that its "'true substance, if any, is well disguised'" may be dismissed for failure to satisfy Rule 8. Hearns v. San Bernardino Police Dep't, 530 F.3d 1124, 1131 (9th Cir. 2008) (quoting Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969)); see also McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996) ("Something labeled a complaint but written . . . prolix in evidentiary detail, yet without simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails to perform the essential functions of a complaint."); Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 673-74 (9th Cir. 1981) (affirming a dismissal with prejudice for failure to comply with Rules 8(a) and 8(e), finding that both the original complaint and an amended complaint were "verbose, confusing and conclusory").

Plaintiff's complaint is not "short and plain" or "simple, concise, and direct," as required by Rules 8(a) and 8(d)(1). Plaintiff's style of quoting his prior inmate appeals does not comply with Rule 8. It is difficult for the Court to assess whether Plaintiff is swearing under oath that he made these allegations in the past or he is currently making these allegations in his present complaint. The Court will not glean through quotations of Plaintiff's inmate appeals to discern possible claims. In Plaintiff's amended complaint, he must make simple, plain, concise, and direct allegations of his current claims, without quoting himself or citing quotes by other inmates.

B. Rule 10(b)

Rule 10(b) of the Federal Rules of Civil Procedure also requires a plaintiff to state claims in "numbered paragraphs, each limited as far as practicable to a single set of circumstances." Fed. R. Civ. P. 10(b). Moreover, "[i]f doing so would promote clarity, each claim founded on a separate transaction or occurrence . . . must be stated in a separate count." Fed. R. Civ. P. 10(b). It is not the responsibility of the Court to review a rambling narrative in an attempt to determine the number and nature of a plaintiff's claims. Thus, Plaintiff's complaint style and formatting fails to comply with Rule 10(b). In Plaintiff's amended complaint, the Court directs him to comply with Rule 10(b).

C. Supervisory Liability and Linkage

Under § 1983, Plaintiff must link the named defendants to the participation in the violation at issue. Iqbal, 129 S. Ct. at 1948-49; Simmons, 609 F.3d at 1020-21; Ewing, 588 F.3d at 1235; Jones, 297 F.3d at 934. Liability may not be imposed on supervisory personnel under the theory of respondeat superior, Iqbal, 129 S. Ct. at 1948-49; Ewing, 588 F.3d at 1235, and administrators may only be held liable if they "participated in or directed the violations, or knew of the violations and failed to act to prevent them," Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr, 652 F.3d 1202, 1205-08; Corales, 567 F.3d at 570; Preschooler II v. Clark County School Board of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997). Some culpable action or inaction must be attributable to defendants and while the creation or enforcement of, or acquiescence in, an unconstitutional policy may support a claim, the policy must have been the moving force behind the violation. Starr, 652 F.3d at 1205; Jeffers v. Gomez, 267 F.3d 895, 914-15 (9th Cir. 2001); Redman v. County of San Diego, 942 F.2d 1435, 1446-47 (9th Cir. 1991); Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989).

Simply naming Matthew Cate, Secretary; Scott Kernan, Under Secretary; George J. Giurbano, Director; D. Foston, Chief, Inmate Appeals; James D. Hartley, Warden; L.S. McEwen, Acting Warden; Scott Frauenheim, Assistant Warden; D.M. Mantel, Associate Warden; A. Lloren, Captain; T.E. Smith, Lieutenant; and A.N. Rodriguez, Lieutenant as defendants is insufficient to hold them liable based on a position of authority as Plaintiff has not alleged any facts linking the defendant to acts or omissions, which suggest that the defendant participated or directed the violations, or knew of the violations and failed to prevent them. Iqbal, 129 S. Ct. at 1948-49; Ewing, 588 F.3d at 1235. Accordingly, the Court finds that Plaintiff fails to state a cognizable claim for relief under § 1983 against Defendants Matthew Cate, Secretary; Scott Kernan, Under Secretary; George J. Giurbano, Director; D. Foston, Chief, Inmate Appeals; James D. Hartley, Warden; L.S. McEwen, Acting Warden; Scott Frauenheim, Assistant Warden; D.M. Mantel, Associate Warden;

A. Lloren, Captain; T.E. Smith, Lieutenant; and A.N. Rodriguez, based upon ...


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