1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCOIS P. GIVENS, No. 2:19-cv-0017 KJN P 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF

CORRECTIONS AND

15 REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff is a state prisoner, proceeding pro se and in forma pauperis. Plaintiff seeks relief 19 pursuant to 42 U.S.C. § 1983. In this court’s initial screening order, plaintiff was provided the 20 court’s screening standards, and advised that his complaint must be dismissed because he joined, 21 in one pleading, unrelated claims that do not all arise from the same transaction, occurrence, or 22 series of transactions or occurrences. Plaintiff was granted leave to amend. In response, plaintiff 23 filed a 42-page amended complaint, down from 96 pages, but it still names 17 defendants, only 24 three less than before, but who are again employed at five different locations. Plaintiff again 25 includes a laundry list of medical treatment or omitted treatment from 2015 to 2019, not all 26 against the same defendants or arising from the same transaction, occurrence, or series of 27 transactions and occurrences. See Fed. R. Civ. P. 20(a). It appears that plaintiff either 28 misunderstood the rule of proper joinder, or simply disregarded this court’s screening order. 1 As plaintiff was previously informed, he cannot join myriad unrelated claims against 2 multiple defendants in one action. A plaintiff may properly assert multiple claims against a single 3 defendant. Fed. Rule Civ. P. 18. In addition, a plaintiff may join multiple defendants in one 4 action only where “any right to relief is asserted against them jointly, severally, or in the 5 alternative with respect to or arising out of the same transaction, occurrence, or series of 6 transactions and occurrences” (emphasis added) and “any question of law or fact common to all 7 defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). Unrelated claims against different 8 defendants must be pursued in separate lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th 9 Cir. 2007). In other words, joining more than one claim in a single complaint is proper when the 10 claims are against the same defendant, but joining multiple defendants in one complaint is proper 11 only if the claims against them are based on the same facts. This rule is intended “not only to 12 prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to 13 ensure that prisoners pay the required filing fees -- for the Prison Litigation Reform Act limits to 14 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the 15 required fees. 28 U.S.C. § 1915(g).” George, 507 F.3d at 607. 16 Plaintiff is advised that the provision of medical care, standing alone, is not the equivalent 17 of “arising from the same transaction, occurrence, or series of transactions and occurrences.” 18 Plaintiff’s amended claims do not arise from the same transaction, occurrence, or series of 19 transactions and occurrences in which all defendants were involved. Plaintiff’s improper joinder 20 of his myriad claims cannot be remedied by dismissal of the unrelated claims because it is unclear 21 which claims he wants to pursue in this action, and which claims he will choose to pursue in 22 separate lawsuits. See Fed. R. Civ. P. 21. However, plaintiff may wish to rely solely on his 23 related claims arising from incidents in 2015 because such claims might otherwise be barred by 24 the statute of limitations.1 Because plaintiff has again attempted to join unrelated claims against 25

1 For the same reason, plaintiff may wish to begin new actions based on his older, unrelated 26 claims to avoid any statute of limitations issue. The statute of limitations for a § 1983 claim filed 27 in California is two years, and it may be tolled for up to an additional two years for the disability of imprisonment for certain plaintiffs. See Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 28 2004); Cal. Civ. Proc. Code §§ 335.1, 352.1, 357. 1 unrelated defendants, the court will not parse plaintiff’s amended claims because the amended 2 complaint must be dismissed. Plaintiff is granted leave to file a second amended complaint in 3 which he raises only those claims arising from the same incident and involving the same 4 defendants. 5 Moreover, plaintiff is cautioned that failure to comply with this court’s orders may result 6 in the involuntary dismissal of this action as a sanction. Fed. R. Civ. P. 41(b). Plaintiff should 7 review the court’s initial screening order, as well as this order, and file a second amended 8 complaint that complies with such orders. In an effort to assist plaintiff in filing the amended 9 pleading, he is advised of the following. 10 A. The Handling of Administrative Appeals 11 Plaintiff is advised that the issue of administrative exhaustion is an affirmative defense 12 raised by defendants. Thus, plaintiff is not required to plead facts about exhaustion or any alleged 13 failure to exhaust. Rather, once plaintiff states a cognizable claim and the pleading is ordered 14 served on a defendant, plaintiff will only be required to respond to the issue of administrative 15 exhaustion if a defendant files a motion challenging such exhaustion. 16 B. Standards Governing Potential Claims 17 The undersigned provides the following relevant standards. 18 1. Eighth Amendment Medical Care 19 While the Eighth Amendment of the United States Constitution entitles plaintiff to 20 medical care, the Eighth Amendment is violated only when a prison official acts with deliberate 21 indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th 22 Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th 23 Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 24 1091, 1096 (9th Cir. 2006). Plaintiff “must show (1) a serious medical need by demonstrating 25 that failure to treat [his] condition could result in further significant injury or the unnecessary and 26 wanton infliction of pain,” and (2) that “the defendant’s response to the need was deliberately 27 indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). Deliberate indifference is 28 shown by “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need, 1 and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 2 1096). The requisite state of mind is one of subjective recklessness, which entails more than 3 ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted); 4 Wilhelm, 680 F.3d at 1122. 5 “A difference of opinion between a physician and the prisoner - or between medical 6 professionals - concerning what medical care is appropriate does not amount to deliberate 7 indifference.” Snow, 681 F.3d at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 8 Wilhelm, 680 F.3d at 1122-23 (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). 9 Rather, plaintiff “must show that the course of treatment the doctors chose was medically 10 unacceptable under the circumstances and that the defendants chose this course in conscious 11 disregard of an excessive risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 12 332) (internal quotation marks omitted). In addition, mere ‘indifference,’ ‘negligence,’ or 13 ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter Laboratories, 14 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)). 15 “Medical malpractice does not become a constitutional violation merely because the victim is a 16 prisoner.” Estelle, 429 U.S. at 106; Snow, 681 F.3d at 987-88; Wilhelm, 680 F.3d at 1122 (“The 17 deliberate indifference doctrine is limited in scope.”). 18 2. Retaliation 19 “Prisoners have a First Amendment right to file grievances against prison officials and to 20 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 21 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). Also protected by the First 22 Amendment is the right to pursue civil rights litigation in federal court without retaliation. Silva 23 v. Di Vittorio, 658 F.3d 1090, 1104 (9th Cir. 2011), overruled on other grounds by Richey v. 24 Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). “Within the prison context, a viable claim of 25 First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took 26 some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and 27 that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action 28 did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 1 567-68 (9th Cir. 2005). Plaintiff need not prove that the alleged retaliatory action, in itself, 2 violated a constitutional right. Pratt v. Rowland, 65 F.3d 802, 806 (1995) (to prevail on a 3 retaliation claim, plaintiff need not “establish an independent constitutional interest” was 4 violated); see also Hines v. Gomez, 108 F.3d 265, 268 (9th Cir. 1997) (upholding jury 5 determination of retaliation based on filing of a false rules violation report); Rizzo v. Dawson, 6 778 F.2d 527, 531(transfer of prisoner to a different prison constituted adverse action for 7 purposes of retaliation claim). Rather, the interest asserted in a retaliation claim is the right to be 8 free of conditions that would not have been imposed but for the alleged retaliatory motive. 9 However, not every allegedly adverse action will support a retaliation claim. See, e.g., Huskey v. 10 City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (retaliation claim cannot rest on “the logical 11 fallacy of post hoc, ergo propter hoc, literally, ‘after this, therefore because of this’”) (citation 12 omitted). 13 The plaintiff has the burden of demonstrating that his exercise of his First Amendment 14 rights was a substantial or motivating factor behind the defendant’s conduct. Mt. Healthy City 15 Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno’s Gasco, Inc. v. Morgan, 16 874 F.2d 1310, 1314 (9th Cir. 1989). Plaintiff must also plead facts which suggest an absence of 17 legitimate correctional goals for the challenged conduct. Pratt, 65 F.3d at 806 (citing Rizzo v. 18 Dawson, 778 F.2d at 532). Mere allegations of retaliatory motive or conduct will not suffice. A 19 prisoner must “allege specific facts showing retaliation because of the exercise of the prisoner’s 20 constitutional rights.” Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1990). Verbal 21 harassment alone is insufficient to state a claim. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 22 (9th Cir. 1987). Even threats of bodily injury are insufficient to state a claim, because a mere 23 naked threat is not the equivalent of doing the act itself. See Gaut v. Sunn, 810 F.2d 923, 925 24 (9th Cir. 1987). 25 Leave to Amend 26 Because plaintiff has again joined unrelated claims from myriad alleged incidents at 27 different prisons against different defendants, the amended complaint must be dismissed. The 28 court, however, grants leave to file a second amended complaint. 1 If plaintiff chooses to amend, plaintiff may join multiple claims if they are all against a 2 single defendant. Fed. R. Civ. P. 18(a). If plaintiff has more than one claim against the same 3 defendant based upon separate transactions or occurrences, the claims must be set forth in 4 separate paragraphs. Fed. R. Civ. P. 10(b). As discussed above, unrelated claims against 5 different defendants must be pursued in multiple lawsuits. 6 The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim . . . may join, [] as independent or as alternate 7 claims, as many claims . . . as the party has against an opposing party.’ Thus multiple claims against a single party are fine, but Claim 8 A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants 9 belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to 10 ensure that prisoners pay the required filing fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or 11 appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g). 12 13 George, 507 F.3d at 607; see also Fed. R. Civ. P. 20(a)(2) (joinder of defendants not permitted 14 unless both commonality and same transaction requirements are satisfied). 15 Also, plaintiff must demonstrate how the conditions about which he complains resulted in 16 a deprivation of plaintiff’s constitutional rights. See, e.g., West v. Atkins, 487 U.S. 42, 48 (1988). 17 Also, the second amended complaint must allege in specific terms how each named defendant is 18 involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no liability under 42 U.S.C. 19 § 1983 unless there is some affirmative link or connection between a defendant’s actions and the 20 claimed deprivation. Rizzo v. Goode, 423 U.S. at 371; May v. Enomoto, 633 F.2d 164, 167 (9th 21 Cir. 1980). Furthermore, vague and conclusory allegations of official participation in civil rights 22 violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 23 Plaintiff is not required to append exhibits to the second amended complaint. 24 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to 25 make plaintiff’s second amended complaint complete. Local Rule 220 requires that an amended 26 complaint be complete in itself without reference to any prior pleading. This requirement exists 27 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez 28 v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint 1 | supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation 2 | omitted)). Once plaintiff files a second amended complaint, the original pleading no longer 3 || serves any function in the case. Therefore, in a second amended complaint, as in an original 4 | complaint, each claim and the involvement of each defendant must be sufficiently alleged. 5 Because this is the court’s second effort to obtain plaintiff's compliance with Rule 20(a), 6 | plaintiffis required to file his second amended complaint on the court’s complaint form. Plaintiff 7 || may append pages explaining his factual allegations about such related defendants, but □□□□□□□□□□□ 8 | second amended complaint may not exceed 15 pages. 9 In accordance with the above, IT IS HEREBY ORDERED that: 10 1. Plaintiff’s amended complaint is dismissed. 11 2. Within sixty days from the date of this order, plaintiff shall complete the attached 12 | Notice of Amendment and submit the following documents to the court: 13 a. The completed Notice of Amendment; and 14 b. An original and one copy of the Second Amended Complaint. 15 | Plaintiff’s second amended complaint shall comply with the requirements of the Civil Rights Act, 16 || the Federal Rules of Civil Procedure, and the Local Rules of Practice, and must be filed on the 17 | court’s complaint form. The second amended complaint must also bear the docket number 18 | assigned to this case, must be labeled “Second Amended Complaint,” and such pleading may not 19 | exceed fifteen pages. 20 Failure to file a second amended complaint in accordance with the April 1, 2019 order, 21 and the instant order, may result in the dismissal of this action. Fed. R. Civ. P. 41(b). 22 3. The Clerk of the Court is directed to send plaintiff the form for filing a civil rights 23 | complaint by a prisoner. 24 | Dated: March 19, 2020 Foci) Aharon 26 KENDALL J. NE

UNITED STATES MAGISTRATE JUDGE

27 28 || /give0017.14b

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCOIS P. GIVENS, No. 2:19-cv-0017 KJN P 12 Plaintiff, 13 v. NOTICE OF AMENDMENT 14 CALIFORNIA DEPARTMENT OF

CORRECTIONS AND

15 REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff hereby submits the following document in compliance with the court’s order 19 filed______________. 20 _____________ Second Amended Complaint using the court’s form 21 and may not exceed fifteen (15) pages

DATED:

22

23 ________________________________ Plaintiff 24 25 26 27 28