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Tunstall v. Virga

United States District Court, E.D. California

September 26, 2014

ROBERT WILLIAM TUNSTALL, JR., Plaintiff,
v.
T. VIRGA, et al., Defendants.

ORDER DISMISSING AMENDED COMPLAINT WITH LEAVE TO AMEND PURSUANT TO 28 U.S.C. § 1915A

EDMUND F. BRENNAN, Magistrate Judge.

Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action brought under 42 U.S.C. § 1983. The case was referred to the undersigned by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff's first amended complaint is before the court for screening. ECF No. 27. Also before the court is his "Motion of Summons to Appear in Court." ECF No. 28.

I. 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).

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).

II. Screening Order

The court has reviewed plaintiff's complaint pursuant to § 1915A and finds it must be dismissed with leave to amend. First, the complaint improperly joins unrelated claims and defendants in a single lawsuit. Plaintiff's filing is 346 pages - a 36 page amended complaint, with 310 pages of exhibits.[1] Plaintiff names approximately 35 individuals as defendants and challenges numerous unrelated incidents involving alleged violations of state and federal law.[2] The complaint includes the following allegations: (1) defendants Daly, Briones, and Zamora rejected or denied plaintiff's health care appeals between August of 2012 and March of 2013; (2) defendant Andreason and Bick failed to provide plaintiff with the medical treatment that they purported to grant in the administrative appeals process in June of 2009; (3) defendant Nappi spit food and saliva onto plaintiff's face on March 11, 2012; (4) defendants Harris, Providence, Pompey, Banks, and Anunciacion retaliated against plaintiff because plaintiff's cousin filed a staff complaint and because plaintiff's victims are African Americans; (5) defendant correctional officer Sahota threatened and discriminated against plaintiff, and interfered with his medical treatment, while defendant Brown applauded; (6) defendant Zepeda and Hall used false documents to place plaintiff in administrative segregation until February 20, 2010; (7) defendants Roland, Baca, Buckner, and Swan "stole part of plaintiff[s] court case" in retaliation for plaintiff's filing of a lawsuit; (8) defendant White stole plaintiff's candy and coffee-related products on May 9, 2013 in retaliation for plaintiff's deposition testimony; (9) defendant Dooly made the false statement that she and plaintiff "are Brother and Sister" on May 20, 2013; (10) defendants Hall, Rose, and Duffy ignored plaintiff's single cell medical chrono and issued a false rules violation report in retaliation for plaintiff's filing of a lawsuit, and to interfere with plaintiff's access to the courts; (11) in May 2013, defendants Lujan and Daly denied plaintiff's administrative appeal requesting use of a wheelchair; (12) defendant Bobbala issued plaintiff a psychotropic medication without first talking to plaintiff; (13) defendant Maxwell confined plaintiff to his cell and issued plaintiff a street hockey helmet out of "retaliation, " "racism, " and "discrimination"; (14) plaintiff was denied certain constitutional rights in proceedings related to an April 11, 2012 rules violation report for battery on an inmate and defendants Tuers, Angello, and Lujan should have placed plaintiff's inmate victim in administrative segregation; (15) defendant Lozano rejected plaintiff's administrative appeals; and (16) defendants Duc and Bobbola failed to provide adequate medical care following surgery on plaintiff's right shoulder, and defendants Bal and Dr. Sahota were aware that their failure in this regard could lead to an infection. While not all of plaintiff's intended claims for relief are clear, it is obvious that the above allegations may not be properly joined together as claims in a single action, as they involve discrete events that do not arise out the same occurrence and involve a common question of law or fact.[3] See Fed.R.Civ.P. 20(a)(2). Because the complaint plainly alleges unrelated claims against different defendants, plaintiff must file an amended complaint correcting this defect.[4]

Second, 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. § 1915 and an order dismissing plaintiff's action pursuant to Rule 41 of the Federal Rules of Civil Procedure for violation of these instructions.

III. Leave to Amend

The court will, however, grant leave to file an amended complaint. Plaintiff is hereby informed of the following legal standards, which may or may not ...


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