United States District Court, E.D. California
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding pro se. Plaintiff seeks
relief pursuant to 42 U.S.C. § 1983, and has requested
leave to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915. This proceeding was referred to this court by
Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in
forma pauperis is granted.
is required to pay the statutory filing fee of $350.00 for
this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By
this order, plaintiff will be assessed an initial partial
filing fee in accordance with the provisions of 28 U.S.C.
§ 1915(b)(1). By separate order, the court will direct
the appropriate agency to collect the initial partial filing
fee from plaintiff's trust account and forward it to the
Clerk of the Court. Thereafter, plaintiff will be obligated
to make monthly payments of twenty percent of the preceding
month's income credited to plaintiff's trust account.
These payments will be forwarded by the appropriate agency to
the Clerk of the Court each time the amount in
plaintiff's account exceeds $10.00, until the filing fee
is paid in full. 28 U.S.C. § 1915(b)(2).
discussed below, plaintiff's complaint is dismissed with
leave to amend.
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. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221,
1227-28 (9th Cir. 1984). The court may, therefore, dismiss a
claim as frivolous when it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327. The
critical inquiry is whether a constitutional claim, however
inartfully pleaded, has an arguable legal and factual basis.
See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.
1989), superseded by statute as stated in Lopez
v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000)
(“[A] judge may dismiss [in forma pauperis] claims
which are based on indisputably meritless legal theories or
whose factual contentions are clearly baseless.”);
Franklin, 745 F.2d at 1227.
8(a)(2) of the Federal Rules of Civil Procedure
“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 Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). In order to survive
dismissal for failure to state a claim, a complaint must
contain more than “a formulaic recitation of the
elements of a cause of action;” it must contain factual
allegations sufficient “to raise a right to relief
above the speculative level.” Bell Atlantic,
550 U.S. at 555. However, “[s]pecific facts are not
necessary; the statement [of facts] need only ‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Bell
Atlantic, 550 U.S. at 555, citations and internal
quotations marks omitted). In reviewing a complaint under
this standard, the court must accept as true the allegations
of the complaint in question, Erickson, 551 U.S. at
93, and construe the pleading in the light most favorable to
the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), overruled on other grounds, Davis v.
Scherer, 468 U.S. 183 (1984).
claims that his right to access the courts has been impaired,
he has been denied access to his legal and other personal
property, defendant Dr. Wong-Do denied plaintiff access to
x-ray, MRI, and pain medication, and defendant Yonus, Muslim
Senior Chaplain, denied plaintiff access to LDS Services.
Plaintiff also alleges violation of the Code of Silence -
Zero Tolerance identified in a State of California Department
of Corrections memo dated February 17, 2004. (ECF No. 1 at
7). Plaintiff names as defendants Assistant Warden J. Weiss,
Muslim Chaplain Yonus, S.H. Wong-Do, Ph.D., Correctional
Officer Tillery, and John Does.
court has reviewed the complaint pursuant to § 1915A and
finds it must be dismissed with leave to amend because the
claims asserted in the complaint are not properly joined
under Federal Rule of Civil Procedure 20(a) concerning
joinder of claims and defendants. Rule 20(a) provides that
all persons may be joined in one action as defendants if
“any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising
out of the same transaction, occurrence, or series of
transactions or occurrences” and “any question of
law or fact common to all defendants will arise in the
action.” Fed.R.Civ.P. 20(a)(2). See also George v.
Smith, 507 F.3d 605, 607 (7th Cir. 2007)
(“Unrelated claims against unrelated defendants belong
in different suits”). If unrelated claims are
improperly joined, the court may dismiss them without
prejudice. Fed.R.Civ.P. 21; 7 Alan Wright, Arthur Miller
& Mary Kay Kane, Richard Marcus, Federal Practice and
Procedure § 1684 (3d ed. 2012); Michaels Building
Co. v. Ameritrust Co., 848 F.2d 674, 682 (6th Cir. 1988)
(affirming dismissing under Rule 21 of certain defendants
where claims against those defendants did not arise out of
the same transaction or occurrences, as required by Rule
parties have been misjoined, the court may drop a party or
sever the claims against that party. Fed.R.Civ.P. 21.
“[D]istrict courts who dismiss rather than sever must
conduct a prejudice analysis, including ‘loss of
otherwise timely claims if new suits are blocked by statutes
of limitations.'” Rush v. Sport Chalet,
Inc., 779 F.3d 973, 975 (9th Cir. 2015) (quoting
DirecTV, Inc. v. Leto, 467 F.3d 842, 846-47 (3d Cir.
2006)). Here, because such unrelated claims are based on
relatively recent incidents, August and September of 2019,
plaintiff will not be prejudiced by their dismissal, without
prejudice, from this action. Plaintiff may ...