Barth v. Montejo

          ORDER

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.

         Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 1983. Before the court is plaintiff's first amended complaint for screening. For the reasons set forth below, this court finds plaintiff has failed to state any claims cognizable under § 1983. Plaintiff will be given another opportunity to amend his complaint.

         BACKGROUND

         Plaintiff filed his original complaint on September 18, 2019. On screening, this court found plaintiff failed to state any cognizable claims for relief. (Sept. 27, 2019 Order (ECF No. 5).) Plaintiff was provided instructions for amending his complaint. On December 23, plaintiff filed a first amended complaint (“FAC”). (ECF No. 13.)

         SCREENING

         As described in this court's prior screening order, the court is required to screen complaints brought by prisoners to determine whether they sufficiently state claims under 42 U.S.C. § 1983. 28 U.S.C. § 1915A(a). The prisoner must plead an arguable legal and factual basis for each claim in order to survive dismissal. Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). In addition, the prisoner must demonstrate a link between the actions of each defendant and the deprivation of his rights. Monell v. Dept. of Social Servs., 436 U.S. 658 (1978). “A person ‘subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

         I. Allegations of the First Amended Complaint (“FAC”)

         Plaintiff is incarcerated at the California Medical Facility (“CMF”). He identifies eight defendants: (1) Dr. Eusebio Montejo; (2) Captain Brown; (3) Lopez, CMF Institutional Security Unit; (4) Warden Jared Lozano; (5) Correctional Officer (“CO”) Borbe; (6) CO Lockwood; (7) Marrie, CMF food service; and (8) Associate Warden Media.

         Like his original complaint, plaintiff's FAC is difficult to decipher. In addition, plaintiff has attached over 700 pages of exhibits to his FAC. This court will not review those exhibits to attempt to determine the bases for plaintiff's claims. It is plaintiff's responsibility to explain his claims plainly and briefly in the body of his complaint. Fed.R.Civ.P. 8(a).

         As best this court can tell, plaintiff makes the following allegations. First, Montejo made sexual advances toward him. Plaintiff then filed a complaint against Montejo under the Prison Rape Elimination Act (“PREA”). Montejo retaliated against plaintiff for filing the complaint by taking away plaintiff's disability classification, plaintiff's walker, and plaintiff's pain medications. Plaintiff also appears to be alleging that Montejo denied him appropriate medical care, specifically shoulder surgery, referral to an orthopedic specialist, and appropriate food. Plaintiff alleges these actions were also retaliatory.

         In his second claim, plaintiff alleges his ingoing and outgoing legal mail has been stolen. He further alleges: (1) defendants Brown and Lozano have refused to respond to his 22 forms; (2) defendant Borbe stole plaintiff's priority envelopes and gave them to “CCPOA gang members;” (3) CO Lockwood harassed plaintiff; and (4) COs Lockwood and Borbe took numerous actions against plaintiff, including having him assaulted by another inmate.

         Finally, in plaintiff's third claim, he appears to re-state some of the issues he raised in his first two claims. He adds allegations that he was denied the right to a hearing on two rules violation reports - one issued by CO Bird and one issued by defendant Borbe.

         II. Does Plaintiff State Cognizable Claims?

         For a number of reasons, plaintiff's FAC fails to state any cognizable claims under § 1983. Below, this court points out the problems with plaintiff's allegations. In any second amended complaint, plaintiff must ...