United States District Court, E.D. California
ORDER REQUIRING PLAINTIFF TO FILE A THIRD AMENDED
COMPLAINT OR NOTIFY THE COURT OF HIS DESIRE TO
PROCEED ONLY ON CLAIM FOUND COGNIZABLE (DOC. 21) 21-DAY
K. OBERTO, UNITED STATES MAGISTRATE JUDGE.
Christopher Lipsey, Jr., an inmate proceeding pro se
and in forma pauperis, alleges that the defendants
retaliated against him in violation of the First Amendment
and denied him access to the courts. (Doc. 21.) Plaintiff states
a cognizable retaliation claim against Defendant B. Seitz;
however, he fails state cognizable access to court claims
against the remaining defendants. Therefore, the Court ORDERS
Plaintiff to either file a third amended complaint curing the
deficiencies in his pleading OR, in the alternative, notify
the Court that he wishes to proceed only on his retaliation
claim against B. Seitz and to dismiss his remaining claims
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an 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, fail to state a claim upon which relief may be
granted, or seek monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915A(b). The Court
should dismiss a complaint if it lacks a cognizable legal
theory or fails to allege sufficient facts to support a
cognizable legal theory. See Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Federal Rule of Civil Procedure 8(a)
8(a)'s simplified pleading standard applies to all civil
actions, with limited exceptions.” Swierkiewicz v.
Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed.
R. Civ. Pro. 8(a)(2). “Such a statement must simply
give the defendant fair notice of what the plaintiff's
claim is and the grounds upon which it rests.”
Swierkiewicz, 534 U.S. at 512 (internal quotation
marks and citation omitted).
factual allegations are not required, but “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Plaintiff must set forth “sufficient factual
matter, accepted as true, to ‘state a claim that is
plausible on its face.'” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 570). Factual
allegations are accepted as true, but legal conclusions are
not. Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555).
Court construes pleadings of pro se prisoners
liberally and affords them the benefit of any doubt.
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
(citation omitted). However, “the liberal pleading
standard … applies only to a plaintiff's factual
allegations, ” not his legal theories. Neitze v.
Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore,
“a liberal interpretation of a civil rights complaint
may not supply essential elements of the claim that were not
initially pled, ” Bruns v. Nat'l Credit Union
Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal
quotation marks and citation omitted), and courts “are
not required to indulge unwarranted inferences.”
Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681
(9th Cir. 2009) (internal quotation marks and citation
omitted). The “sheer possibility that a defendant has
acted unlawfully” is not sufficient to state a
cognizable claim, and “facts that are merely consistent
with a defendant's liability” fall short.
Iqbal, 556 U.S. at 678 (internal quotation marks and
Linkage and Causation
1983 provides a cause of action for the violation of
constitutional or other federal rights by persons acting
under color of state law. See 42 U.S.C. § 1983.
To state a claim under Section 1983, a plaintiff must show a
causal connection or link between the actions of the
defendants and the deprivation alleged to have been suffered
by the plaintiff. See Rizzo v. Goode, 423 U.S. 362,
373-75 (1976). The Ninth Circuit has held that “[a]
person ‘subjects' another to the deprivation of a
constitutional right, within the meaning of section 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) (citation omitted).
EXHAUSTION OF ADMINISTRATIVE REMEDIES
Prison Litigation Reform Act provides that “[n]o action
shall be brought with respect to prison conditions under
… any other Federal law … by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of
administrative remedies is mandatory and “unexhausted
claims cannot be brought in court.” Jones v.
Bock, 549 U.S. 199, 211. Inmates are required to
“complete the administrative review process in
accordance with the applicable procedural rules, including
deadlines, as a precondition to bringing suit in federal
court.” Woodford v. Ngo, 548 U.S. 81, 88, 93
(2006). The exhaustion requirement applies to all inmate
suits relating to prison life, Porter v. Nussle, 534
U.S. 516, 532 (2002), regardless of the relief sought by the
prisoner or offered by the administrative process, Booth
v. Churner, 532 U.S. 731, 741 (2001).
the failure to exhaust is an affirmative defense that the
defendant must plead and prove. Jones, 549 U.S. at
204, 216. However, courts may dismiss a claim under Federal
Rule of Civil Procedure 12(b)(6) “[i]n the rare event
that a failure to exhaust is clear on the face of the
complaint. Albino v. Baca, 747 F.3d 1162, 1166 (9th
Cir. 2014). “Otherwise, ...