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Khamo v. Warden of CSP-SAC

United States District Court, E.D. California

August 30, 2017

FABIAN KHAMO, Plaintiff,
v.
WARDEN OF CSP-SAC, et al., Defendants.

          ORDER GRANTING IFP AND DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. § 1915A

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and has filed motion to amend the complaint, and a “motion for counsel and equitable tolling.”

         I. Request to Proceed In Forma Pauperis

         Plaintiff's in forma pauperis 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, 556 U.S. 662, 679 (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.” Iqbal, 556 U.S. at 678.

         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, 556 U.S. at 678. 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, 551 U.S. 89 (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 amended complaint (ECF No. 6) pursuant to § 1915A and finds that it must be dismissed with leave to amend.[1] It alleges that defendant Duran, an officer at California State Prison, Sacramento, assisted plaintiff in obtaining his mail. It also names the Director of the California Department of Corrections and Rehabilitation (“CDCR”), and the Wardens of California State Prison, Sacramento and the California Correctional Institution as defendants, but includes no factual allegations linking any of them to any violation of plaintiff's rights. The remainder of the allegations concerns events that allegedly arose in Kern County, at the California Correctional Institution in Tehachapi, California. Specifically, it alleges that Officer Duran threatened plaintiff and that Officers Martinez, Davis, and Campbell used excessive force against plaintiff. The complaint also names Sergeant Ruiz as a defendant but does not include any factual allegations linking Ruiz to any violation of plaintiff's rights. The complaint does not include a request for relief. For the reasons explained below, the complaint is dismissed with leave to amend.

         First, the complaint fails to state a cognizable claim against any of the defendants alleged to be in Sacramento. In order to state a claim under § 1983, a plaintiff must allege: (1) the violation of a federal constitutional or statutory right; and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the facts establish the defendant's personal involvement in the constitutional deprivation or a causal connection between the defendant's wrongful conduct and the alleged constitutional deprivation. See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). It is not clear how Bettencourt violated plaintiff's federal rights by assisting plaintiff in locating his mail. Moreover, plaintiff may not sue a warden or the Director of CDCR simply because of their roles as supervisors, i.e., on the theory that they are liable for the unconstitutional conduct of their subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Because respondeat superior liability is inapplicable to § 1983 suits, “a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Id.

         Second, the complaint appears to improperly join unrelated claims in a single lawsuit. The Federal Rules of Civil Procedure do not allow a claimant to raise unrelated claims against different defendants in a single action. Instead, a plaintiff may add multiple parties where the asserted right to relief arises out of the same transaction or occurrence and a common question of law or fact will arise in the action. See Fed. R. Civ. P. 20(a)(2). Unrelated claims involving different defendants must be brought in separate lawsuits.[2]

         Third, the court cannot determine whether venue in this division of the court is proper. The federal venue statute provides that a civil action “may be brought in (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) if there is no district in which an action may otherwise be brought as provided in this action, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.” 28 U.S.C. § 1391(b). Tehachapi is in Kern County, which lies in the Fresno Division of the United States District Court for the Eastern District of California. E.D. Cal. Local Rule 120(d). If a second amended complaint reveals that there is no basis for jurisdiction in the Sacramento division of the ...


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