1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTOINE L. ARDDS, Case No. 1:18-cv-01324-LJO-BAM (PC) 12 Plaintiff, SCREENING ORDER GRANTING

PLAINTIFF LEAVE TO AMEND

13 v. (ECF No. 23) 14 D. HICKS, et al.,

15 Defendants.

THIRTY-DAY DEADLINE

16 17 18 Plaintiff Antoine L. Ardds (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on 20 September 21, 2018, and the matter was transferred to this Court on September 26, 2018. (ECF 21 Nos. 1 and 3.) Plaintiff’s first amended complaint, filed on December 11, 2018, is currently 22 before the Court for screening. (ECF No. 23.) 23 I. Screening Requirement and Standard 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 27 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 28 1 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 2 A complaint must contain “a short and plain statement of the claim showing that the 3 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 4 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 5 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 7 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 8 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 9 To survive screening, Plaintiff’s claims must be facially plausible, which requires 10 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 11 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. 12 Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted 13 unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the 14 plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 15 II. Plaintiff’s Allegations 16 Plaintiff is currently housed at California State Prison, Corcoran (“CSP-Corcoran”), where 17 the events in the amended complaint are alleged to have occurred. Plaintiff brings this action for 18 damages, along with declaratory and injunctive relief, against the following defendants: (1) 19 Lieutenant J. Amaya; (2) Correctional Counselor D. Sanchez; (3) Officer J. Alcantar; (4) Officer 20 J. McIntyre; (5) Officer D. Hicks; (6) Officer A. Baylon; and (7) Licensed Correctional Social 21 Worker R. Severens. Plaintiff names defendants in their individual and official capacities. 22 Allegations re Substantial Risk of Serious Harm 23 On September 2, 2017, Plaintiff was housed in a CTC-Mental Health Crisis Bed at CSP- 24 Corcoran due to Plaintiff’s suicidal condition. On November 2, 2017, Defendants Severens and 25 Sanchez were informed by Plaintiff of his fears of being set up by CSP-Corcoran-3B officials for 26 being an active participant in several civil actions against CDCR officials. Plaintiff made several 27 requests for a single cell due to an alleged history of CDCR officials staging in-cell assaults by 28 cellmates. 1 On December 28, 2017, Defendants Severens and Sanchez were given Plaintiff’s Inmate 2 Request for Interview CDCR 22 form requesting a single cell. Plaintiff informed both defendants 3 of the possible use of cellmates by CSP-Corcoran-3B officials as instruments of assault in 4 retaliation for filing civil actions and witnessing abuse of authority and discriminatory actions by 5 CSP-Corcoran officials against the 3-B Facility mental health population. 6 Plaintiff claims that due to the deliberate indifference of Defendants Severens and 7 Sanchez, Plaintiff was assaulted by his cell mate, Inmate T. Hall, on November 9, 2017. Plaintiff 8 sustained severe facial injuries from being struck from behind by Inmate Hall. Inmate Hall had a 9 previous, similar attack on another inmate with the same use of a state plastic cup as a weapon. 10 Plaintiff alleges that Defendants Amaya, Hicks and Sanchez ignored the substantial risk of 11 harm posed to Plaintiff even with personal knowledge of Plaintiff’s history of in-cell and out-of- 12 cell assaults by cellmates. Plaintiff asserts that Defendant Hicks was in charge of inmate housing 13 assignments and that Inmate Hall was intentionally placed in Plaintiff’s cell. 14 Plaintiff filed several grievances/appeals and inmate request for interview forms in which 15 he continued to complain or request single cell status due to his fears of being set up for assaults. 16 Defendants Severens, Sanchez and Hicks allegedly had previous knowledge of the 17 substantial risk of serious harm posed to Plaintiff through their access to his central files. Plaintiff 18 claims that they ignored departmental policies, procedure and requirements. 19 Defendant Sanchez reportedly stated her awareness of such a threat posed to Plaintiff in 20 Plaintiff’s UCC Hearing and his CDCR 128(b) form dated November 2, 2017. Even with such 21 knowledge, Defendant Sanchez reportedly ignored the risk factors and failed to intervene to 22 safeguard Plaintiff. 23 Plaintiff contends that the due to the failure of all defendants to comply with the 24 Departmental Operations Manual, he was viciously assaulted on November 9, 2017, and suffered 25 severe injuries to the right side of his face, eye, lips and nose area from being struck with a state 26 cup from behind by Inmate Hall. 27 On November 27, 2017, Plaintiff filed his first appeal/grievance complaining of the failure 28 of Defendant Sanchez to honor his request for single cell placement. Plaintiff reports that he was 1 brought before Defendant Sanchez in an effort to threaten, intimidate and force Plaintiff to 2 withdraw the grievance. On December 19, 2017, Plaintiff stated in his withdrawal that he would 3 better address the issues in another appeal regarding the assault. 4 Allegations re Failure to Protect 5 Plaintiff alleges that on January 19, 2016, Kathleen Allison, CDCR Director, and Scott 6 Kernan, CDCR Secretary, sent a memorandum to all CDCR Wardens and Associate Directors 7 addressing inmate housing assignment considerations during the screening and housing process. 8 The memorandum reiterated and clarified the obligation of Defendants Hicks, Alcantar, 9 McIntyre, Baylon, Sanchez, Severens and Amaya to consider the vulnerabilities of inmates with 10 mental and medical health conditions or severe developmental disabilities when determining 11 whether to grant single cell status under the Departmental Operations Manual. 12 Plaintiff contends that he had demonstrated on several occasions through departmental 13 evidence that he fit each set of criteria in the January 19, 2016 memorandum. Plaintiff claims that 14 each of these factors was intentionally ignored by defendants due to their feelings about his 15 commitment offense and his continued civil actions and staff complaints. Plaintiff further claims 16 that they ignored the length of his sentence, his enemies and victimization history, his 17 vulnerability due to medical or mental health and disabilities, history of in-cell assaults and/or 18 violence, nature of commitment offense, history of “S” suffix determination, and security threat 19 group affiliation and/or associate thereof. Plaintiff asserts that due to defendants’ failure to 20 comply or implement an assessment of these criteria, he was assaulted with a state plastic cup 21 from behind by Inmate Hall on November 9, 2017. At the time of the attack, Plaintiff was in the 22 medication line. Plaintiff asserts that the attack was unprovoked and that he had never met or had 23 any words with Inmate Hall prior to that time. 24 Allegations re Use of Inmate Hall as an Instrument of Assault 25 Plaintiff alleges that on November 9, 2017, at approximately 8:00 p.m., he was assaulted 26 by his cellmate, Inmate T. Hall. Inmate Hall came behind Plaintiff during medication call and 27 struck him with a state plastic cup several times to his face, causing severe injuries to his right 28 eye, nose and lips, which later required x-rays. Plaintiff claims that the attack was unprovoked 1 because Inmate Hall was just placed in his cell by Defendants Hicks, Sanchez, Alcantar, McIntyre 2 and Amaya, who had prior knowledge of Inmate Hall’s comments similar assaults and STG 3 affiliation to the SNY 2-5ers. Plaintiff claims that these defendants knew that Inmate Hall posed 4 a substantial risk of harm to Plaintiff due to his enemies on the yard and that he was looking for a 5 way off the yard. 6 Plaintiff believes that Inmate Hall was placed in the cell of Inmate Massey after the 7 purported assault and batter on Plaintiff. Due to Inmate Massey’s complaints filed against unit 8 staff in unit one, Inmate Hall assaulted Inmate Massey, who later paroled, with a state cup, 9 causing severe injuries to his eye on November 17, 2017. 10 Plaintiff claims that on November 9, 2017, Defendants Alcantar and McIntyre were in 11 position between the medication carts. Plaintiff asserts that both had a bird’s eye view of the 12 incident from beginning to end. 13 On December 19, 2017, Plaintiff requested that each officer state if he or she witnessed 14 Inmate Hall strike him the face several times. Defendants Alacantar and McIntyre offered the use 15 of a cup without being asked if such weapon was ever used. Plaintiff alleges that Defendants 16 Alcantar, McIntyre, Hicks and Amaya conspired with each other in using Inmate Hall as their 17 instrument to carry out the assault of Plaintiff on November 9, 2017, by intentionally placing 18 Inmate Hall in Plaintiff’s cell in retaliation for his participation in civil acts and staff complaints 19 against CDCR officials. Plaintiff further alleges that each defendant had access to the 20 department’s computer in which to evaluate housing criteria and Defendant Amaya and Hicks 21 were assigned to housing inmates. 22 Exhaustion of Administrative Remedies 23 On January 3, 2018, Plaintiff filed his second grievance/appeal addressing the November 24 9, 2017 failure to protect against the assault by Inmate Hall. Plaintiff claims that defendants and 25 their agents delayed and obstructed the process, making administrative remedies unavailable. 26 Plaintiff also claims that defendants retaliated against him in his efforts to resolve the matter 27 through proper investigation or evidentiary corroboration of his requested witnesses during his 28 disciplinary hearing on the charge of fighting. 1 On March 5, 2018, Plaintiff received his grievance back, but it was not in its original 2 form. Plaintiff avers that defendants attempted to manipulate the appeals process until Plaintiff 3 refiled his complaint on March 7, 2018, as instructed by Inmate Appeals Coordinator T. Galaviz. 4 On December 28, 2017, Plaintiff submitted his CDCR Inmate Request for Interview Form 5 to Defendants Sanchez and Severens regarding their failure to honor his single cell request and to 6 document his complaint of the November 9, 2017 assault and battery. 7 On January 4, 2018, Plaintiff submitted an Inmate Request for Interview CDCR 22 Form 8 to Defendant Severens informing him of Plaintiff’s fears of cellmate assaults and retaliation from 9 CSP-Corcoran officials. Defendant Severens attempted to mislead Plaintiff regarding the criteria 10 for single cell status, referencing a reportedly non-existent memorandum from September 2011. 11 Defendant failed to offer such document upon request. 12 On March 29, 2018, in retaliation for Plaintiff filing the above complaints (and the 13 February 17, 2018 assault and batter and possible death of Inmate D. Cole by several prison 14 officials), Plaintiff’s complaint/letters to the Office of Internal Affairs were intercepted by prison 15 officials on February 22, 2018. 16 Defendants Sanchez, Hicks, Alcantar, McIntyre, Severens, Amaya and Baylon attempted 17 to remove Plaintiff from the Enhanced Outpatient Housing Unit, his assigned level of care, into a 18 general population unit that was not his assigned or designated mental health care level. 19 Failure to Protect and Deliberate Indifference – March 29, 2018 20 On March 29, 2018, Plaintiff gave notice to Correctional Officer M. Riley of his need to 21 speak with his clinician regarding his suicidal ideation at approximately 1:15 p.m. This notice 22 was ignored by Defendants Severens, who was assigned to Plaintiff. 23 At approximately 1:57 p.m., Inmate Moore informed Defendants Alcantar and McIntyre 24 of Plaintiff slicing and cutting his throat and neck in a suicide attempt. Inmate Moore, who was 25 Plaintiff’s next-door neighbor, overheard his requests and statements of using a razor due to 26 feeling suicidal. 27 Defendant Alcantar responded and handcuffed Plaintiff, seating him at the middle “B” 28 section dayroom table to be evaluated by medical first responders. Plaintiff was escorted by 1 Correctional Officer Billings, who was assigned to sit on him during his mental and medical 2 evaluation by an LVN, RN and Chief Psychiatrist Ducci. 3 Chief Psychiatrist Ducci made a call to Defendant Amaya at approximately 4:35 p.m. 4 requesting that on Plaintiff’s return, he be secured in a single cell. Defendant Amaya agreed. 5 While awaiting further evaluation, Officer Billings conducted a computer check to ensure that 6 Plaintiff would return to the agreed upon single cell placement. At 4:45 p.m., Officer Billings 7 confirmed that Plaintiff should return to his assigned cell as a single cell. 8 On March 29, 2018, at approximately 4:48 p.m., Plaintiff was released from CTC and 9 escorted by Officer Billings back to his assigned cell. Upon Plaintiff and Officer Billings 10 entering the unit, they were informed by Defendants Alcantar and McIntyre that Plaintiff would 11 be reassigned to a CCCMS unit. Plaintiff was supposed to remain housed in a designated E.O.P. 12 unit. Officer Billings escorted Plaintiff to his newly assigned cell, which was unoccupied. As 13 Plaintiff entered, he and Officer Billings noticed that Defendants Baylon and another officer were 14 walking Inmate Robertson towards Plaintiff’s cell. 15 Plaintiff believes that Inmate Robertson also was an STG affiliated inmate who 16 Defendants Hicks, Alcantar, McIntyre, Amaya, Sanchez, Baylon and Severens knew had 17 requested Administrative Segregation due to his safety concerns regarding other STG affiliated 18 groups finding out that he was not of their Independent Riders Gang. Plaintiff also believes that 19 Inmate Robertson was given instructions by Defendants Hicks, Amaya, Alcantar, McIntyre and 20 Baylon that if he assaulted Plaintiff, then he could be removed from the substantial risk of harm 21 he faced from his enemies. 22 Plaintiff informed Defendants Hicks, Amaya and Baylon that he felt suicidal and unsafe to 23 be housed with anyone. Defendant Amaya, Baylon and Hicks refused to acknowledge Plaintiff’s 24 request for a mental health suicide watch placement. Due to the continued threats of harm and 25 the intimidation by Defendants Hicks, Amaya and Baylon, Plaintiff was forced to agree to return 26 to his unit. Upon Plaintiff’s return, he observed that Inmate Robertson was already in the cell and 27 had placed items within the door frame to prevent custody from opening the cell door. Defendant 28 Baylon stated that he would force Plaintiff into the cell. Plaintiff was still cuffed, but Inmate 1 Robertson was not. 2 Inmate Robertson placed two razors on the tray slot, pointing at them for Plaintiff to see. 3 Inmate Robertson further stated to Defendant Baylon that Plaintiff would not be coming into the 4 cell and displayed a prison knife/shank. Plaintiff was placed into the shower while the assigned 5 third watch sergeant attempted to manipulate the situation with Inmate Robertson. One of the 6 officials who observed this informed the third watch commander and Psychiatrist Ducci that 7 Plaintiff was placed in the wrong mental health treatment unit. Plaintiff was later reassigned to 8 original housing unit. Upon being reassigned, Plaintiff informed Defendants Alcantar and 9 McIntyre of his suicidal ideations, because he was feeling stressed out, unsafe and depressed. 10 Defendants continued to ignore Plaintiff’s mental health concerns. 11 Upon information and belief, Psychiatrist Ducci sent both Dr. Hurt and Dr. Chong to 12 remove Plaintiff from the unsafe environment. Plaintiff informed them of his suicidal ideation. 13 Dr. Hurt and Dr. Chong then instructed Defendants Alcantar and McIntyre to place Plaintiff in the 14 shower. He was later escorted to CTC-MHCB. Plaintiff believes defendants retaliated against 15 these psychiatrists for assisting and reporting the abuse of authority that they witnessed. Plaintiff 16 claims that Defendant D. Hicks has used and abused his position as the union representative to 17 harass, intimidate, and threaten other employees and inmates who complaint against him or 18 others. 19 Retaliation by Defendant Hicks 20 Plaintiff alleges that Defendants Hicks, Baylon and Alcantar have acted with deliberate 21 indifference to substantial risk of serious harm to Plaintiff and other mentally disabled 22 patients/inmates in violation of their rights under the Americans with Disabilities Act, the 23 Rehabilitation Act and the Eighth Amendment. Plaintiff believes that Defendant Hicks has a past 24 history of similar abuse against inmates housed at CSP-Corcoran. 25 Plaintiff contends that in September 2014, there was civil complaint accusing Defendant 26 Hicks of similar abuse of authority, with an intent to incite/provoke violence using abusive and 27 improper language. Plaintiff cites Lerenzo Darnell Hutson v. D. Hicks, et al., 1:15-cv-01505- 28 AWI-SAB (PC). In July 2013, a videotaped interview was conducted by Defendant Hicks 1 relating to the use of excessive force. Plaintiff contends that Defendant Hicks conspired to 2 transfer the plaintiff in Millner v. Biter to avoid liability by DVSP prison officials. Plaintiff again 3 cites Hutson v. Hicks, along with James W. Miller v. Martin Biter, et al., 1:13-cv-02029-AWI- 4 SAB. Plaintiff further alleges that a number of events have continued to occur with Plaintiff and 5 other mentally disabled inmates that should have raised concerns about CSP-Corcoran 3B Unit 6 and to officials continuing to engage in a custom and pattern of using other prisoners as the 7 instruments of their assaults upon CSP-COR-3B-EOP population in retaliation for filing 8 complaint or being unable to complain at all due to rears of intimidation and threats. Plaintiff 9 claims there is a substantial threat of irreparable harm to Plaintiff and CSP-COR-EOP population 10 if his injunction is not granted. 11 Plaintiff also alleges that Defendants Hicks, Baylon and Alcantar continue to attempt to 12 incite and provoke other inmates to assault Plaintiff by releasing confidential C-File information 13 to them. Plaintiff alleges that the acts and omissions of Defendants Hicks Sanchez and Amaya 14 (or their subordinates; failure to act) amount to the deprivation of Plaintiff’s right to reasonable 15 protection from assault, harassment, intimidation or threats as provided by the Eighth 16 Amendment and the Bane Act, California Civil Code 52.1. Plaintiff further alleges that 17 Defendants Hicks, Sanchez, Alcantar, McIntyre, Baylon, Amaya and Severens have demonstrated 18 their intentional failure to report all misconduct or unnecessary use of force by other guards. 19 Plaintiff contends that Defendants Hick, the 3B-Facility union representative, has abused his 20 authority and position against staff employees and inmates through harassment, intimidation and 21 treats, creating a substantial risk of harm to inmates and other prison officials who report his 22 misconduct. 23 Causes of Action 24 In his first cause of action, Plaintiff asserts that Defendants Amaya, Alcantar, McIntyre, 25 Baylon, Sanchez, Severens and Hicks were deliberately indifferent to a substantial risk of inmate- 26 on-inmate assaults and have deprived Plaintiff and other mentally disabled inmates of their rights 27 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. 28 In his second cause of action, Plaintiff alleges that Defendants Amaya, Severens, and 1 Sanchez failed to intervene in the ongoing placement of assaultive cellmates into Plaintiff’s cell, 2 even after their acknowledgement of Inmate Hall’s prior STG affiliation and similar acts of 3 violence upon cell mates with a state cup. Plaintiff claims that this amounts to deliberate 4 indifference to safety in violation of the Due of Process Clause of the Fourteenth Amendment and 5 the Eighth Amendment. 6 In his third cause of action, Plaintiff claims Defendants Hicks, Amaya, Alcantar, 7 McIntyre, Sanchez, Baylon and Severens were deliberately indifferent to his serious mental 8 health needs. On March 29, 2019, Defendants allegedly deprived Plaintiff of his rights under the 9 Due Process Clause of the Fourteenth Amendment, the Americans with Disabilities Act and 10 Section 504 of the Rehabilitation Act. 11 In his fourth cause of action, Plaintiff alleges that the failure of defendants to act on their 12 knowledge of a substantial risk of serious harm to Plaintiff and other prisoners violated Plaintiff’s 13 Eighth Amendment right to be free from deliberate indifference to his personal safety. As a result 14 of Defendants’ failure to protect him from a foreseeable attack, Plaintiff suffered an eye, nose and 15 lip injury from the November 9, 2017 assault. 16 In his fifth cause of action, Plaintiff alleges that the refusal of Defendants Hicks, Alcantar, 17 McIntyre, Amaya and Baylon to provide him with mental health treatment or notify appropriate 18 mental or medical personnel of suicidal ideation constituted deliberate indifference to his health 19 and safety and deprived him of his rights under the Due Process Clause of the Fourteenth 20 Amendment and deliberate indifference to his mental health needs in violation of the Eighth 21 Amendment. Plaintiff further alleges that Defendants Amaya, Severens, Alcantar, McIntyre, 22 Baylon and Hicks have created a policy, procedure and custom of restricting and punishment 23 mentally disabled inmates for requesting assistance in suicide prevention. The refusal of 24 defendants to provide protection or medical and mental health assistance to Plaintiff reportedly 25 resulted from Plaintiff’s filing of grievances and civil actions against defendants in previous 26 district cases. Plaintiff claims this constitutes retaliation in violation of the First Amendment. 27 Plaintiff further claims that as a result of defendants’ failures, he was viciously assaulted on 28 November 9, 2017, and there was an attempted assault by Inmate Robertson on March 29, 2018, 1 incited and provoked by Defendants Hicks, Amaya, Alcantar, Severens, Sanchez, McIntyre and 2 Baylon. Defendants allegedly breached their duty by failing to provide protection to Plaintiff 3 after he provided several notices through CDCR forms and grievances and psychiatrist, 4 psychologist and other CDCR investigative units informing them of such threats and fears. The 5 breach resulted in serious mental and physical injuries to Plaintiff. 6 Requested Relief 7 As relief, Plaintiff seeks a declaratory judgment, injunctive relief and monetary damages. 8 III. Discussion 9 Plaintiff’s complaint fails to comply with Federal Rules of Civil Procedure 8, 18 and 20. 10 As Plaintiff is proceeding pro se, he will be given an opportunity to amend his complaint to cure 11 the identified deficiencies to the extent he is able to do so in good faith. To assist Plaintiff, the 12 Court provides the relevant pleading and legal standards that appear applicable to his claims. 13 A. Pleading Standards 14 1. Federal Rule of Civil Procedure 8 15 Pursuant to Rule 8, a complaint must contain “a short and plain statement of the claim 16 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed factual allegations are 17 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 18 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must set 19 forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 20 face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual allegations are 21 accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556–57; Moss, 572 22 F.3d at 969. 23 Plaintiff’s complaint is not a short or plain statement of his claims. The complaint is 24 repetitive, disorganized and contains allegations regarding events involving other inmates and 25 staff members unrelated to Plaintiff’s claims. Plaintiff’s complaint also does not include a clear 26 chronology of events. In any amended complaint, Plaintiff must clearly state what happened, 27 when it happened and who was involved. 28 2. Federal Rules of Civil Procedure 18 and 20 1 Plaintiff may not bring unrelated claims against unrelated parties in a single action. Fed. 2 R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 3 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so long 4 as (1) the claim arises out of the same transaction or occurrence, or series of transactions and 5 occurrences, and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); 6 Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997). The “same transaction” requirement 7 refers to similarity in the factual background of a claim. Id. at 1349. Only if the defendants are 8 properly joined under Rule 20(a) will the Court review the other claims to determine if they may 9 be joined under Rule 18(a), which permits the joinder of multiple claims against the same party. 10 Plaintiff may not raise unrelated claims against different defendants in a single action 11 Joining multiple defendants in one complaint is proper only if the claims against them are based 12 on the same facts. 13 3. Linkage Requirement 14 The Civil Rights Act under which this action was filed provides:

15 Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States...to the deprivation of any rights, 16 privileges, or immunities secured by the Constitution...shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 17 18 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between 19 the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See 20 Monell v. Dep't of Soc. Servs., 436 U.S. 658, (1978); Rizzo v. Goode, 423 U.S. 362, (1976). The 21 Ninth Circuit has held that “[a] person ‘subjects another to the deprivation of a constitutional 22 right, within the meaning of section 1983, if he does an affirmative act, participates in another's 23 affirmative acts or omits to perform an act which he is legally required to do that causes the 24 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978). 25 Throughout the complaint, Plaintiff repeatedly lumps all defendants together in his 26 allegations, making it difficult for the Court to draw the necessary connection between each 27 defendant’s actions or omissions and the alleged denial of Plaintiff’s constitutional rights. In any 28 amended complaint, Plaintiff must properly link each individual defendant to an alleged 1 deprivation of his constitutional rights. 2 4. Claims of Other Inmates or Staff Members 3 Insofar as Plaintiff is attempting to assert claims on behalf of other inmates or staff 4 members regarding alleged wrongs by the named defendants, he may not do so. Plaintiff may 5 only represent his own legal interests; he may not represent the legal interests of other inmates or 6 other individuals. “A litigant appearing in propria persona has no authority to represent anyone 7 other than himself” in a civil rights action. Russell v. United States, 308 F.2d 78, 79 (9th Cir. 8 1962); see also Weaver v. Wilcox, 650 F.2d 22, 27 (3rd Cir. 1981) (“[A]n inmate does not have 9 standing to sue on behalf of his fellow prisoners. Rather, the prisoner must allege a personal loss 10 and seek to vindicate a deprivation of his own constitutional rights.” (Citations omitted.)). 11 “Although a non-attorney may appear in propria persona in his own behalf, that privilege is 12 personal to him. He has no authority to appear as an attorney for others than himself.” C.E. Pope 13 Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir. 1987) (citations omitted). 14 B. Legal Standards 15 1. First Amendment - Retaliation 16 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to 17 petition the government may support a section 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090, 18 1104 (9th Cir. 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also 19 Valandingham v. Bojorquez, 866 F. 2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 20 (9th Cir. 1995). “Within the prison context, a viable claim of First Amendment retaliation entails 21 five basic elements: (1) An assertion that a state actor took some adverse action against an inmate 22 (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 23 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 24 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. 25 Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658 at 1104; Brodheim v. Cry, 584 F.3d 26 1262, 1269 (9th Cir. 2009). 27 Here, Plaintiff alleges that Defendants’ actions in allegedly setting him up for assault on 28 two occasions, failing to provide him with appropriate mental health treatment and confiscating 1 his outgoing mail were based on retaliation for civil actions and grievances. Plaintiff’s 2 allegations are conclusory, and the Court cannot determine the sequence of events alleged in the 3 complaint or whether Defendants’ asserted actions (or inaction) were because of any protected 4 conduct by Plaintiff. There is no indication in the complaint that any of the defendants knew of 5 Plaintiff’s civil actions or grievances before acting on Plaintiff’s housing assignment, cell 6 assignments or mental health treatment. In any amended complaint, Plaintiff must clearly and 7 succinctly allege what happened, when it happened and who was involved. 8 2. First Amendment – Interference with Outgoing Mail 9 Prisoners have “‘a First Amendment right to send and receive mail,’ but prison regulations 10 may curtail that right if the ‘regulations are reasonably related to legitimate penological 11 interests.’” Nordstrom v. Ryan, 856 F.3d 1265, 1272 (9th Cir. 2017) (quoting Witherow v. Paff, 12 52 F.3d 264, 265 (9th Cir. 1995) (per curiam)). However, a temporary delay or isolated incident 13 of delay or other mail interference without evidence of improper motive does not violate a 14 prisoner’s First Amendment rights. See Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (as 15 amended); see Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003); Smith v. Maschner, 899 F.2d 16 940, 944 (10th Cir. 1990 Watkins v. Curry, 2011 WL 5079532, at *4 (N.D. Cal. Oct. 25, 2011) 17 (finding that an isolated incident of mail mishandling, without evidence that the delay was based 18 on the content of the letter or that the one-year delay was purposeful, fails to show First 19 Amendment violation). 20 Plaintiff’s allegations regarding interception of his mail are confusing and illogical. He 21 asserts that the alleged confiscation of his mail occurred on both March 19, 2018 and February 22 22, 2018, but the alleged confiscation appears to relate to the same piece(s) of mail. Further, 23 Plaintiff fails to attribute the confiscation of his mail to any of the named defendants in this 24 action. In any amended complaint, Plaintiff must clearly state what happened, when it happened 25 and who was involved in the alleged confiscation of his outgoing mail. Plaintiff is cautioned that 26 if this claim is not properly joined, it will not be permitted to proceed in this action. 27 3. Eighth Amendment – Deliberate Indifference to Serious Medical Needs 28 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual 1 punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of 2 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 3 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate 4 indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure 5 to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and 6 wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately 7 indifferent.” Jett, 439 F.3d at 1096. 8 A defendant does not act in a deliberately indifferent manner unless the defendant “knows 9 of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 10 837 (1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo Cty. Ariz., 609 11 F.3d 1011, 1019 (9th Cir. 2010), overruled in part by Castro v. County of Los Angeles, 833 F.3d 12 1060 (9th Cir. 2016) (en banc); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is 13 shown where there was “a purposeful act or failure to respond to a prisoner’s pain or possible 14 medical need” and the indifference caused harm. Jett, 439 F.3d at 1096. 15 At the pleading stage, the Court finds that Plaintiff has stated a cognizable claim for 16 deliberate indifference to serious medical needs against Defendant Severens based on Plaintiff’s 17 attempted suicide on March 29, 2018. However, as discussed above, this claim does not appear 18 to be properly joined with claims against other defendants named in this action involving 19 different events. Further, Plaintiff’s other assertions of deliberate indifference to serious medical 20 needs do not rise to the level of an Eighth Amendment violation. There is no indication that 21 Plaintiff suffered any harm from other alleged action/inaction by any of the defendants, such as 22 the alleged failure to assign Plaintiff to the proper housing unit after his alleged suicide attempt. 23 4. Eighth Amendment – Failure to Protect 24 Prison officials have a duty under the Eighth Amendment to protect prisoners from 25 violence at the hands of other prisoners or others because being violently assaulted in prison is 26 simply not part of the penalty that criminal offenders pay for their offenses against society. 27 Farmer, 511 U.S. at 833-34; Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009); Hearns v. 28 Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005). However, prison officials are liable under the 1 Eighth Amendment only if they demonstrate deliberate indifference to conditions posing a 2 substantial risk of serious harm to an inmate; and it is well settled that deliberate indifference 3 occurs when an official acted or failed to act despite his knowledge of a substantial risk of serious 4 harm. Farmer, 511 U.S. at 834, 841; Clem, 566 F.3d at 1181; Hearns, 413 F.3d at 1040. 5 In this instance, Plaintiff alleges that certain defendants failed to protect him from assault 6 by Inmate Hall on November 9, 2017. Plaintiff’s complaint fails to state a cognizable claim for 7 failure to protect under the Eighth Amendment. There is no indication that any defendants were 8 aware of a risk of assault to Plaintiff while he was waiting in the medication line. The incident 9 reportedly occurred before Inmate Hall was placed in Plaintiff’s cell and before Plaintiff even met 10 Inmate Hall. Based on this information, the Court cannot conclude that prison officials knew of a 11 risk of harm and failed to protect Plaintiff. Plaintiff’s reported complaints of a generalized risk of 12 assault are not sufficient. 13 Plaintiff also appears to allege that certain defendants failed to protect him from Inmate 14 Robertson. Yet, according to Plaintiff’s allegations, Inmate Robertson did not harm, injure or 15 otherwise assault Plaintiff. Further, there is no indication that Plaintiff was ever placed in the 16 same cell with Inmate Robertson and he was not subjected to any assault or attack. Plaintiff’s 17 complaint therefore fails to state a cognizable claim. 18 5. Fourteenth Amendment – Due Process and Equal Protection 19 The nature of Plaintiff’s Due Process and Equal Protection claims is unclear. Insofar as 20 Plaintiff’s Due Process claim is based on the processing and resolution of his appeals/grievances, 21 Plaintiff’s complaint fails to state a cognizable claim. “The Fourteenth Amendment’s Due 22 Process Clause protects persons against deprivations of life, liberty, or property; and those who 23 seek to invoke its procedural protection must establish that one of these interests is at stake.” 24 Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Plaintiff does not a have protected liberty interest 25 in the processing of his appeals/grievances, and therefore, he cannot pursue a claim for denial of 26 due process with respect to the handling or resolution of his appeals. Ramirez v. Galaza, 334 F.3d 27 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). 28 To the extent Plaintiff is pursuing an Equal Protection claim based on his status as a 1 mental health patient, Plaintiff’s complaint also fails to state a cognizable claim. The Equal 2 Protection Clause requires that persons who are similarly situated be treated alike. City of 3 Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, (1985); Shakur v. Schriro, 514 F.3d 4 878, 891 (9th Cir. 2008). An equal protection claim may be established by showing that 5 defendants intentionally discriminated against a plaintiff based on his membership in a protected 6 class, Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 702– 03 (9th 7 Cir. 2009); Serrano v. Francis, 345 F.3d 1071,1082 (9th Cir. 2003), or that similarly situated 8 individuals were intentionally treated differently without a rational relationship to a legitimate 9 state purpose, Engquist v. Oregon Department of Agr., 553 U.S. 591, 601–02 (2008); Village of 10 Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 11 592 (9th Cir. 2008). 12 Plaintiff has not shown that he was discriminated against because of his membership in 13 any protected class. Nor has Plaintiff shown that he was intentionally treated differently than 14 other similarly situated inmates without a rational relationship to a legitimate state purpose. 15 Plaintiff’s conclusory statements about discrimination do not suffice. Therefore, he has not stated 16 any claim for a violation of his Fourteenth Amendment rights. 17 6. Americans with Disabilities Act (“ADA”)/Rehabilitation Act (“RA”) 18 Title II of the ADA prohibits a public entity from discriminating against a qualified 19 individual with a disability on the basis of disability. 42 U.S.C. § 12132 (1994); Weinrich v. L.A. 20 County Metro Transp. Auth., 114 F.3d 976, 978 (9th Cir.), cert. denied, 522 U.S. 971 (1997). The 21 Supreme Court has held that Title II of the ADA applies to state prisons. Pennsylvania Dept. of 22 Corr. v. Yeskey, 524 U.S. 206, 210 (1998); see also Lee v. City of L.A., 250 F.3d 668, 691 (9th 23 Cir. 2001). 24 To state a claim under Title II, the plaintiff must allege four elements: (1) the plaintiff is 25 an individual with a disability; (2) the plaintiff is otherwise qualified to participate in or receive 26 the benefit of some public entity’s services, programs, or activities; (3) the plaintiff was either 27 excluded from participation in or denied the benefits by the public entity; and (4) such exclusion, 28 denial of benefits or discrimination was by reason of the plaintiff’s disability. Simmons, 609 F.3d 1 at 1021 (9th Cir. 2010); McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004). While 2 the RA has the additional requirement that the program or activity receive federal funds, 29 3 U.S.C. § 794, “[t]here is no significant difference in analysis of the rights and obligations created 4 by the ADA and the Rehabilitation Act. Thus, courts have applied the same analysis to claims 5 brought under both statutes.” Zukle v. Regents of the Univ. of California, 166 F.3d 1041, 1045 6 n.11 (9th Cir. 1999) (citations omitted). 7 To the extent plaintiff intends to sue the individual named defendants for violation of his 8 rights under the ADA, they are not proper defendants in this action. The proper defendant in 9 ADA actions is the public entity responsible for the alleged discrimination. U.S. v. Georgia, 546 10 U.S. 151, 153 (2006). State correctional facilities are “public entities” within the meaning of the 11 ADA. Yeskey, 524 U.S. at 210; Armstrong v. Wilson, 124 F.3d 1019, 1025 (9th Cir. 1997) (ADA 12 and RA apply to inmates in the state correctional system). 13 In order to state a claim under the ADA, the plaintiff must have been “improperly 14 excluded from participation in, and denied the benefit of, a prison service, program, or activity on 15 the basis of his physical handicap.” Armstrong, 124 F.3d at 1023. Plaintiff has alleged no facts 16 demonstrating such exclusion or denial. While Plaintiff alleges Plaintiff is mentally ill, he does 17 not allege his illness led to an exclusion or denial of a prison service, program, or activity. 18 Further, plaintiff’s allegations of inadequate medical care do not state a claim under the ADA. 19 Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“The ADA does not create a remedy for 20 medical malpractice.”); see also Simmons, 609 F.3d at 1022 (stating that inadequate or negligent 21 medical treatment alone does not constitute an unlawful failure to accommodate under the ADA). 22 7. Declaratory Relief 23 Plaintiff's complaint seeks a declaratory judgment. “A declaratory judgment, like other 24 forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the 25 public interest.” Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431 (1948). 26 “Declaratory relief should be denied when it will neither serve a useful purpose in clarifying and 27 settling the legal relations in issue nor terminate the proceedings and afford relief from the 28 uncertainty and controversy faced by the parties.” United States v. Washington, 759 F.2d 1353, 1 1357 (9th Cir. 1985). 2 If this action reaches trial and the jury returns a verdict in favor of Plaintiff, then that 3 verdict will be a finding that Plaintiff's constitutional rights were violated. Accordingly, a 4 declaration that any defendant violated Plaintiff's rights is unnecessary. 5 IV. Conclusion and Order 6 Plaintiff’s complaint fails to comply with Federal Rules of Civil Procedure 8, 18 and 20. 7 As Plaintiff is proceeding pro se, the Court will grant Plaintiff an opportunity to amend his 8 complaint to cure the above-identified deficiencies to the extent he is able to do so in good faith. 9 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff’s amended complaint should be 10 brief, Fed. R. Civ. P. 8(a), but it must state what each named defendant did that led to the 11 deprivation of Plaintiff’s constitutional rights, Iqbal, 556 U.S. at 678-79, 129 S.Ct. at 1948-49. 12 Although accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief 13 above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). 14 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated 15 claims in his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no 16 “buckshot” complaints). 17 Finally, Plaintiff is advised that an amended complaint supersedes the original complaint. 18 Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s amended 19 complaint must be “complete in itself without reference to the prior or superseded pleading.” 20 Local Rule 220. 21 Based on the foregoing, it is HEREBY ORDERED that: 22 1. The Clerk’s Office shall send Plaintiff a complaint form; 23 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file an 24 amended complaint curing the deficiencies identified by the Court in this order or file a notice of 25 voluntary dismissal; and 26 /// 27 /// 28 /// 1 3. If Plaintiff fails to file an amended complaint in compliance with this order, the 2 Court will recommend dismissal of this action, with prejudice, for failure to obey a court order 3 and for failure to state a claim. 4

IT IS SO ORDERED.

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6 Dated: October 30, 2019 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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