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Aaron Stribling v. J. Defazio

May 8, 2013

AARON STRIBLING, PLAINTIFF,
v.
J. DEFAZIO, ET AL.,
DEFENDANTS.



ORDER GRANTING IFP AND SCREENING ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

Plaintiff is a state inmate proceeding without counsel in an action brought under 42 U.S.C. § 1983. In addition to filing a complaint, plaintiff has filed an application to proceed in forma pauperis.

I. Request to Proceed In Forma Pauperis

Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff's application 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).

II. Screening Requirement and Standards

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).

A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) "requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). While the complaint must comply with the "short and plaint statement" requirements of Rule 8, its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

To avoid dismissal for failure to state a claim a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555-557. In other words, "[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. at 1949.

Furthermore, a claim upon which the court can grant relief must have facial plausibility. 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." Iqbal, 129 S. Ct. at 1949. When considering whether a complaint states a claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and construe the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

III. Screening Order

The court has reviewed plaintiff's complaint pursuant to § 1915A and finds it must be dismissed with leave to amend. First, plaintiff appears to have improperly joined unrelated claims and defendants in a single lawsuit. The complaint references discrete events involving one or more of the approximately 24 named defendants. See Dckt. No. 1 (including allegations regarding: (1) excessive force by defendant Bartolomedi on January 27, 2010 and wrongful placement in administrative segregation; (2) an August 11, 2010 falsified battery on a peace officer charge to retain plaintiff in administrative segregation; (3) an August 30, 2010 physical assault, false battery charge, and Security Housing Unit ("SHU") term; (4) a November 22, 2010 falsified charge for refusing to accept a cellmate; (5) an alleged instance of deliberate indifference on March 2, 2011; (6) alleged denial of yard time from March 4, 2011 to May 5, 2011; (7) a March 5, 2011 denial of prescheduled visit; (8) a wrongfully assessed SHU term on May 4, 2011; (9) a July 28, 2011 use of a chemical spray and denial of medical care; and (10) a July 29, 2011 unnecessary force incident). While plaintiff's intended claims for relief are not clear, it is obvious that the above allegations may not be properly joined together as claims in this action, as they involve discrete events that do not arise out the same occurrence and involve a common question of law or fact.*fn1 See Fed. R. Civ. P. 20(a)(2). Because the complaint appears to allege unrelated claims against different defendants, plaintiff must file an amended complaint correcting this defect. Plaintiff 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).

Second, plaintiff's allegations regarding an alleged use of excessive force by defendant Bartolomedi on January 27, 2010 are duplicative of those currently being litigated in Stribling v. Bortolemedi, No. 2:10-cv-3247 CKD.*fn2 See 28 U.S.C. § 1915A(b)(1); see also Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (A complaint that "merely repeats pending or previously litigated claims" may be dismissed as frivolous under the authority of 28 U.S.C. § 1915). Plaintiff must pursue his excessive force allegations against Bartolomedi in the action he initially commenced. Those allegations shall not be re-alleged in any amended complaint.

Third, the allegations in the complaint are simply too vague and conclusory to state a cognizable claim for relief and violate Rule 8. 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. 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. ยง 1915 ...


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