1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDDIE LAMAR DUNBAR, No. 2:19-cv-1359 JAM DB 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 15 Defendant. 16 17 Plaintiff is a county inmate proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. This action was transferred from the United States District Court for the Northern 19 District of California on July 19, 2019. (ECF No. 7.) Plaintiff claims that officers used excessive 20 force against him, denied him medical treatment, and threatened him. Presently before the court 21 is plaintiff’s motion to proceed in forma pauperis (ECF No. 2) and his complaint for screening 22 (ECF No. 1). For the reasons set forth below the court will grant the motion to proceed in forma 23 pauperis and dismiss the complaint with leave to amend. 24 IN FORMA PAUPERIS 25 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. § 26 1915(a). (ECF No. 2.) Accordingly, the request to proceed in forma pauperis will be granted. 27 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 28 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in 1 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 2 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 3 forward it to the Clerk of the court. Thereafter, plaintiff will be obligated for monthly payments 4 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 5 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 6 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 7 1915(b)(2). 8 SCREENING 9 I. Legal Standards 10 The court is required to screen complaints brought by prisoners seeking relief against a 11 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 12 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 13 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 14 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 15 U.S.C. § 1915A(b)(1) & (2). 16 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 17 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 18 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 19 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 20 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 21 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. 22 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 23 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 24 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 25 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 26 However, in order to survive dismissal for failure to state a claim a complaint must 27 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 28 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 1 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 2 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 3 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 4 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 5 The Civil Rights Act under which this action was filed provides as follows: 6 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 7 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 8 or other proper proceeding for redress. 9 42 U.S.C. § 1983. Here, the defendants must act under color of federal law. Bivens, 403 U.S. at 10 389. The statute requires that there be an actual connection or link between the 11 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 12 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 13 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 14 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 15 omits to perform an act which he is legally required to do that causes the deprivation of which 16 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 17 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 18 their employees under a theory of respondeat superior and, therefore, when a named defendant 19 holds a supervisorial position, the causal link between him and the claimed constitutional 20 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 21 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 22 concerning the involvement of official personnel in civil rights violations are not sufficient. See 23 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 24 //// 25 //// 26 //// 27 //// 28 //// 1 II. Allegations in the Complaint 2 Plaintiff states the events giving rise to his claim occurred while he was incarcerated at 3 High Desert State Prison (HDSP). He names as defendants in this action: (1) HDSP; (2) 4 California Department of Corrections (CDCR); (3) Internal Affairs1; and (4) “a couple of officers 5 unknown at this time.” (ECF No. 1 at 2.) 6 Plaintiff claims correctional officers from the Investigations Services Unit (ISU) squad 7 attacked him on November 13, 2015. (Id. at 4.) Plaintiff states he was choked, kicked, and 8 slapped while in mechanical restraints. He alleges he suffered a severe head injury as a result of 9 the assault and was denied medical attention. 10 Plaintiff claims that officers threatened and attempted to bribe him to drop his complaint. 11 (Id.) Plaintiff further alleges that he attempted to file grievances regarding the incident after he 12 was transferred to a different facility in January 2016, but they were rejected. Plaintiff claims 13 Internal Affairs accepted his case and he was given a log number, but he was not contacted or 14 updated on the status of the investigation. 15 Plaintiff further states that he contacted the Internal Affairs office after he was released in 16 March 2017. (Id. at 5.) He alleges that officers destroyed his legal documents and falsified 17 reports. Plaintiff seeks compensatory and punitive damages. (Id. at 3.) 18 III. Plaintiff Fails to State a Claim under § 1983 19 “To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a 20 right secured by the Constitution or law of the United States was violated, and (2) that the alleged 21 violation was committed by a person acting under color of State law.” Long v. County of L.A., 22 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)); accord 23 Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988) (“To make out a cause of 24 action under section 1983, plaintiffs must plead that (1) the defendants acting under color of state 25 law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes” (citations 26

27 1 The court presumes plaintiff intends to name as a defendant the Office of Internal Affairs (OIA). The OIA conducts “complete, objective, and independent investigations of alleged employee 28 misconduct.” See https://www.cdcr.ca.gov/oia/. 1 omitted).). The complaint contains allegations that could state a claim for excessive force and 2 deliberate indifference in violation of the Eighth Amendment. However, the complaint will be 3 dismissed with leave to amend because plaintiff has failed to name a proper defendant in this 4 action. 5 A. Eleventh Amendment 6 Plaintiff has named CDCR and High Desert State Prison as defendants in this action. In 7 the context of prisoner lawsuits against CDCR, the Ninth Circuit has expressly and repeatedly 8 held that CDCR is immune from suit under the Eleventh Amendment. See, e.g., Brown v. Cal. 9 Dep’t of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (“The district court correctly held that the 10 California Department of Corrections and the California Board of Prison Terms were entitled to 11 Eleventh Amendment immunity.”); Fulcher v. Cal. Dep’t of Corrs., 297 Fed. App’x 645, 646 (9th 12 Cir. 2008) (“[T]he California Department of Corrections . . . is a state agency that is immune from 13 liability under the Eleventh Amendment.”); cf. Holley v. Cal. Dep’t of Corrs., 599 F.3d 1108, 14 1111-12 (9th Cir. 2010) (affirming dismissal of complaint against CDCR because California had 15 not constructively waived its sovereign immunity by accepting federal funds). Accordingly, 16 CDCR is not a proper defendant in this action. 17 Plaintiff’s claim against High Desert State Prison also cannot proceed because state 18 prisons enjoy Eleventh Amendment immunity. See Allison v. Cal. Adult Auth., 419 U.S. 658, 19 690 n.54 (1978) (applying Eleventh Amendment to bar suits against state prisons). 20 B. Internal Affairs 21 Plaintiff claims he filed a complaint with the Office of Internal Affairs, but he was not 22 contacted and did not receive any updates on the investigation. (ECF No. 1 at 4.) It is well- 23 established that “inmates lack a separate constitutional entitlement to a specific prison grievance 24 procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 25 F.2d 639, 640 (9th Cir. 1988)). When a prison official fails to process or respond to an inmate’s 26 grievance, he does not, without more, commit a constitutional violation. See Buckley v. Barlow, 27 977 F.2d 494, 495 (8th Cir. 1993) (prison grievance system is procedural and does not afford an 28 //// 1 inmate separate substantive rights). Accordingly, plaintiff’s allegations regarding his complaint 2 filed with the Office of Internal Affairs fails to state a claim. 3 C. Doe Defendants 4 Plaintiff states that in addition to the three defendants identified in the complaint, he 5 intends to name as defendants in this action, “a couple of officers unknown at this time.” (ECF 6 No. 1 at 2.) 7 Plaintiff is informed that should he include defendants whose names are presently 8 unknown to him he must show that each identified, though unnamed, defendant has violated his 9 rights. See Jones v. Williams, 297 F.3d 930, 934 (2002) (Under § 1983, plaintiff must 10 demonstrate that each named defendant personally participated in the deprivation of his rights.); 11 Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (In order to state a cognizable claim, plaintiff 12 must set forth specific factual allegations demonstrating how each defendant violated his rights.). 13 The use of John Does in pleading practice is generally disfavored, it is not prohibited. See 14 Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wakefield v. Thompson, 177 F.3d 1160, 15 1163 (9th Cir. 1999); Lopes v. Viera, 543 F. Supp.2d 1149, 1152 (E.D. Cal. 2008). 16 “John Doe” defendant liability must also be properly alleged. Plaintiff may use “Doe” 17 designations to refer to defenants whose names are unknown; however, he must number them in 18 the complaint, e.g., “John Doe 1,” “John Doe 2,” so that each numbered John Doe refers to a 19 specific person. If plaintiff chooses to file an amended complaint, he shall either name the 20 defendants involved or list the Doe defendants involved and describe what each did not violate 21 his rights. If plaintiff can only list these defendants as John Doe, plaintiff should allege specific 22 acts that each Doe defendant did, such as “John Doe 1 did X” and “John Doe 2 did Y.” 23 Alexander v. Tilton, No. 1:07-cv-0759 LJO DLB, 2009 WL 464486, at *5 (E.D. Cal. Feb. 24, 24 2009). 25 IV. Amending the Complaint 26 As stated above, the complaint fails to state a cognizable claim. However, plaintiff will be 27 given the opportunity to amend. 28 //// 1 Plaintiff is advised that in an amended complaint he must clearly identify each defendant 2 and the action that defendant took that violated his constitutional rights. The court is not required 3 to review exhibits to determine what plaintiff’s charging allegations are as to each named 4 defendant. Each claim must be included in the body of the complaint. The charging allegations 5 must be set forth in the amended complaint, so defendants have fair notice of the claims plaintiff 6 is presenting. That said, plaintiff need not provide every detailed fact in support of his claims. 7 Rather, plaintiff should provide a short, plain statement of each claim. See Fed. R. Civ. P. 8(a). 8 Any amended complaint must show the federal court has jurisdiction, the action is brought 9 in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It must 10 contain a request for particular relief. Plaintiff must identify as a defendant only persons who 11 personally participated in a substantial way in depriving plaintiff of a federal constitutional right. 12 Johnson, 588 F.2d at 743 (a person subjects another to the deprivation of a constitutional right if 13 he does an act, participates in another’s act or omits to perform an act he is legally required to do 14 that causes the alleged deprivation). 15 In an amended complaint, the allegations must be set forth in numbered paragraphs. Fed. 16 R. Civ. P 10(b). Plaintiff may join multiple claims if they are all against a single defendant. Fed. 17 R. Civ. P. 18(a). If plaintiff has more than one claim based upon separate transactions or 18 occurrences, the claims must be set forth in separate paragraphs. Fed. R. Civ. P. 10(b). 19 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 20 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 21 heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P. 22 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 23 set forth in short and plain terms, simply, concisely, and directly. See Swierkiewicz v. Sorema 24 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 25 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 26 Plaintiff is informed that the court cannot refer to a prior pleading in order to make his 27 amended complaint complete. An amended complaint must be complete in itself without 28 reference to any prior pleading. E.D. Cal. R. 220. Once plaintiff files an amended complaint, all 1 | prior pleadings are superseded. Therefore, in an amended complaint, as in an original complaint, 2 | each claim and the involvement of each defendant must be sufficiently alleged. 3 By signing an amended complaint, plaintiff certifies he has made reasonable inquiry and 4 || has evidentiary support for his allegations, and for violation of this rule the court may impose 5 || sanctions sufficient to deter repetition by plaintiff or others. Fed. R. Civ. P. 11. 6 CONCLUSION 7 In accordance with the above, IT IS HEREBY ORDERED that: 8 1. Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 2) is granted. 9 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 10 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 8 11 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order 12 to the Alameda County Sheriff filed concurrently herewith. 13 3. Plaintiff’s complaint (ECF No. 1) is dismissed with leave to amend. 14 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 15 complaint that complies with the requirements of the Civil Rights Act, the Federal 16 Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint 17 must bear the docket number assigned to this case and must be labeled “First 18 Amended Complaint.” 19 5. Failure to comply with this order will result in a recommendation that this action be 20 dismissed. 21 || Dated: September 20, 2019

A .B ORAH BARNES

UNITED STATES MAGISTRATE JUDGE

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