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Vitrano v. Wong

United States District Court, C.D. California

February 17, 2015

D. WONG, et al., Defendants.


SUZANNE H. SEGAL, Magistrate Judge.



On December 15, 2014, Plaintiff Thomas P. Vitrano ("Plaintiff"), a prisoner in federal custody proceeding pro se, filed a civil rights complaint pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) (the "Complaint"). On December 23, 2014, pursuant to Plaintiff's request, the Court granted leave for Plaintiff to proceed in forma pauperis.

Congress has mandated that district courts initially screen civil complaints filed by prisoners seeking redress from governmental entities or employees. 28 U.S.C. § 1915A(a). This Court may dismiss such a complaint, or any portions thereof, before service of process if the Court concludes that the complaint (1) is frivolous or malicious, (2) fails to state a claim upon which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 n.7 (9th Cir. 2000) (en banc). For the reasons stated below, the Complaint is dismissed with leave to amend.[1]



Plaintiff alleges that the following defendants - all Federal Bureau of Prisons employees at Federal Correctional Institution Victorville Medium II ("Victorville" or the "prison") - violated his civil rights: (1) D. Wong, a medical staff member; (2) Ms. Maschimo, variously described as a health services administrator or supervisor; (3) Warden Louis Milusnic; (4) Officer Rojos; (5) Officer Martinez; (6) Lieutenant F. Wilcutt; (7) Ms. Tran, a nurse; (8) "Unknown Officer, AKA Big Show'"; (9) "Captain John Doe"; (10) Correctional Officer Miller; (11) Antonia Rogers, described as a nurse; (12) Correctional Officer Rameriz; (13) "Unknown Transport Officer on 1-16-2014"; Case 5:14-cv-02561-JGB-SS Document 6 Filed 02/17/15 Page 3 of 10 Page ID #:158 (14) "Unknown Transport Lieutenant on 3-27-2014"); (15) Officer Rios; (16) Ms. Y. Douchand, a unit manager; (17) Ms. H. Biagiante, a case manager; and (18) "Ms. Edwards, " a counselor. (Complaint, Dkt. No. 1, at 2, 29, 38, 39, 55, 62, 63, 78, 79, 94, 95, and 108).[2] Plaintiff sues all of the Defendants in their individual and official capacities. Id.

Plaintiff's claims arise from several events relating to his custody.[3] Plaintiff asserts that, on November 1, 2013, prison officials transferred him to a medical unit for treatment, following an attack by another inmate. (Id. at 5). While examining Plaintiff's fractured hip and wrist, defendant Wong "fondled [Plaintiff's] penis." (Id.) When Plaintiff complained, Wong deliberately shook and twisted his leg in an attempt to cause greater pain. (Id.) Plaintiff subsequently underwent hip replacement surgery at a hospital outside the prison. (Id. at 108). Correctional and transport officers caused Plaintiff further injury while returning him to prison in "black box" handcuffs. (Id. at 63-65). Plaintiff was wheelchair-bound when he returned to Victorville, but officials assigned him to a non-handicapped-accessible cell in the facility's security housing unit ("SHU"), denied access to a shower for "over 30 days, " and denied access to outdoor recreation for nearly four months. (Id. Case 5:14-cv-02561-JGB-SS Document 6 Filed 02/17/15 Page 4 of 10 Page ID #:159 at 40-41). Prison officials never informed Plaintiff why he had been placed in segregation. (Id. at 56). Plaintiff was also denied emergency medical care for an asthma attack (Id. at 30), and prevented from using a prescribed sleep apnea device. (Id. at 79). When Plaintiff complained of his treatment, officials "retaliated" by changing his security classification from "low" to "medium." (Id. at 108-09). Officials also deliberately delayed sending mail to this Court, allegedly violating Plaintiff's constitutional rights and possibly impeding a habeas petition already before the Court.[4] (Id. at 94-96).

It is difficult to construe the exact nature of Plaintiff's claims, but they include allegations that Defendants violated his First, Fourth, Fifth, Sixth and Eighth Amendment rights. Plaintiff also claims injuries due, inter alia, to prison officials' "medical negligence and deliberate indifference" (Id. at 29), the "tort of assault and battery" (Id. at 6-7), "sexual abuse" (Id. at 6), "infliction of emotional distress" (Id.), and gross negligence by supervisory personnel (Id. at 8).



Under 28 U.S.C. § 1915A(b), the Court must dismiss Plaintiff's Complaint due to defects in pleading. Pro se litigants in civil rights cases must, however, be given leave to amend their complaints unless it is absolutely clear that the Case 5:14-cv-02561-JGB-SS Document 6 Filed 02/17/15 Page 5 of 10 Page ID #:160 deficiencies cannot be cured by amendment. Lopez, 203 F.3d at 1127-29. Accordingly, the Court grants Plaintiff leave to amend, as discussed below.[5]

A. Plaintiff's Claims Are Defective To The Extent Plaintiff Sues Defendants In Their Official Capacities

Plaintiff sues all eighteen Defendants for monetary damages pursuant to Bivens in their individual and official capacities. (Complaint at 2, 29, 38, 39, 55, 62, 63, 78, 79, 94, 95, and 108). The official capacity claims cannot proceed.

"An individual may not maintain a Bivens action for monetary damages against the United States." Daly-Murphy v. Winston, 837 F.2d 348, 256 (9th Cir. 1987). Accordingly, Plaintiff's claims against Defendants in their official capacities are defective, as an official capacity suit is the equivalent of an action against the United States. Plaintiff may sue Defendants under Bivens only in their individual capacities.[6]

B. The Complaint Violates Rule 8 Case 5:14-cv-02561-JGB-SS Document 6 Filed 02/17/15 Page 6 of 10 Page ID #:161

Plaintiff's Complaint does not comply with the standards of Federal Rule of Civil Procedure 8. See Fed.R.Civ.P. 8. Rule 8(a)(2) "requires only 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, 555 (2007). "Each allegation must be simple, concise, and direct." Fed.R.Civ.P. 8(d)(1); see also Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (pleading may violate Rule 8 in "multiple ways, " including saying "too little" or "too much").

Here, the Complaint mixes potentially relevant and irrelevant facts with legal argument and exhibits, rendering its claims confusing and nonsensical. (See Complaint at 1-141). Although Plaintiff partially utilized the Court's standard form for civil rights complaints, the Complaint is 141 pages long. Its long, rambling narrative fails to clearly identify the factual bases for each claim, or to state how each defendant's actions specifically violated Plaintiff's civil rights. Plaintiff mixes purported constitutional claims with tort or administrative claims. (See, e.g., Complaint at 5-6 (Wong's "inappropriate touching, assault & battery" violated Plaintiff's Fourth Amendment rights, and Wong's "wanton state of mind" Case 5:14-cv-02561-JGB-SS Document 6 Filed 02/17/15 Page 7 of 10 Page ID #:162 violated Plaintiff's Eighth Amendment rights); id. at 56 (prison's failure to inform Plaintiff of basis for administrative segregation or to file disciplinary report constitutes "cruel and unusual punishment"); id. at 109 (changing Plaintiff's security classification to "medium" violated his First Amendment rights)).[7]

As such, the Complaint fails to provide Defendants with fair notice of the claims in a short, clear and concise statement. Even if the factual allegations pertaining to each claim were more clearly identified, it would be difficult, as a practical matter, for Defendants to frame a responsive pleading. In sum, the Complaint fails to provide a short, clear and concise statement of Plaintiff's claims, as Rule 8 requires.

Where a Rule 8 violation is egregious, as in this case, dismissal is appropriate. See McHenry v. Renne, et al., 84 F.3d 1172, 1177-80 (9th Cir. 1996) (affirming dismissal of third amended complaint that was "argumentative, prolix, replete with redundancy, and largely irrelevant"); Hatch v. Reliance Ins. Co., 758 F.2d 409, 415 (9th Cir. 1985) (dismissing "confusing and conclusory" seventy-page complaint). Nevertheless, "dismissal Case 5:14-cv-02561-JGB-SS Document 6 Filed 02/17/15 Page 8 of 10 Page ID #:163 without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001) (citations omitted).

C. Discovery of "Doe" Defendants

Plaintiff fails to plead the full names of defendants Wong, Maschimo, Rojos, Martinez, Wilcutt, Tran, Miller, Rameriz, Rios, Douchand, Biagiante, or Edwards. In addition, Plaintiff identifies as defendants an unknown correctional officer known as "Big Show, " a "Captain John Doe, " and two unnamed transport officers. Plaintiff is responsible for obtaining the full name of each defendant named in any amended complaint. Failure to do so will result in dismissal of claims against these sixteen "Doe" defendants.

Plaintiff is entitled to conduct discovery in order to obtain this information. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) ("[W]here the identity of the alleged defendant is not known prior to the filing of a complaint, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.") (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (alterations omitted)). Accordingly, if Plaintiff does not know the full names of the defendants identified above, he must promptly pursue Case 5:14-cv-02561-JGB-SS Document 6 Filed 02/17/15 Page 9 of 10 Page ID #:164 discovery to determine the names of those defendants. Plaintiff may then discover and substitute the full names of those defendants who are inadequately identified in the current complaint.



For the reasons stated above, Plaintiff's Complaint is dismissed with leave to amend. If Plaintiff still wishes to pursue this action, he is granted forty-five (45) days from the date of this Memorandum and Order in which to conduct discovery, discover the names of the Doe defendants, and file a First Amended Complaint, including the full names of any defendant. Plaintiff must act promptly in order to obtain discovery answers in time to file his amended complaint.

In any amended complaint, Plaintiff shall cure the defects described above. The First Amended Complaint, if any, shall be complete in itself and shall bear both the designation "First Amended Complaint" and the case number assigned to this action. It shall not refer in any manner to the original Complaint.

Plaintiff should confine his allegations to those operative facts supporting each of his claims. Plaintiff is advised that pursuant to Federal Rule of Civil Procedure 8(a), all that is required is a "short and plain statement of the claim showing Case 5:14-cv-02561-JGB-SS Document 6 Filed 02/17/15 Page 10 of 10 Page ID #:165 that the pleader is entitled to relief." Plaintiff is strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached. Plaintiff should identify the nature of each separate legal claim and make clear what specific factual allegations support his claims. Plaintiff is strongly encouraged to keep his statements concise and to omit irrelevant details.

Plaintiff is explicitly cautioned that failure to timely file a First Amended Complaint, or failure to correct the deficiencies described above, will result in a recommendation that this action be dismissed with prejudice for failure to prosecute and obey court orders pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff is further advised that if he no longer wishes to pursue this action, he may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiff's convenience.

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