1 2 3 4 5 6 7

UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA

9

WESTERN DIVISION

10 11 12 ANDREW L. KICKING HORSE Case No. 2:20-cv-00112-DOC (AFM) McCARTER, 13

ORDER DISMISSING COMPLAINT

Plaintiff, 14 WITH LEAVE TO AMEND v. 15 ERICA LAKE, et al., 16 Defendants. 17 18 19 Plaintiff, a state prisoner currently incarcerated at the California State Prison, 20 Lancaster (“CSP-LAC”), filed this pro se civil rights action pursuant to 42 U.S.C. 21 § 1983 on January 6, 2020. (ECF No. 1.) Plaintiff’s request to proceed without 22 prepayment of the filing fees was denied by the assigned District Judge, and plaintiff 23 was ordered to pay the filing fees in full by no later than February 12, 2020. (ECF 24 Nos. 2, 4.) Plaintiff paid a portion of the filing fees on February 5, 2020, and the 25 Court ordered plaintiff to pay the balance of the filing fees by no later than March 6, 26 2020. (ECF No. 6.) To date, plaintiff has failed to pay the balance that is due. 27 Accordingly, plaintiff is ORDEREDto pay the outstanding balance of the filing fees 28 within 30 days of this Order,or the Court will recommend that this case bedismissed. 1 In his Complaint, plaintiff names as defendants E. Lake, CSP-LAC’s 2 Community Resources Manager, in her individual and official capacities; J. Lazar, 3 CSP-LAC’s chaplain, in his individual and official capacities; R. Diaz, the Secretary 4 of the California Department of Corrections and Rehabilitation (“CDCR”), in his 5 official capacity; and R. Johnson, the Warden of CSP-LAC, in his official capacity. 6 (ECF No. 1 at 3-4, 10-12.) Plaintiff purports to raise four claims under the Religious 7 Land Use and Institutionalized Persons Act (“RLUIPA”), under the Religious 8 Exercise Clause of the First Amendment, for retaliation under the First Amendment, 9 and for “Breach of Settlement Agreement.” (Id. at 5, 27-30.) Plaintiff seeks 10 injunctive relief to prevent “defendants” from continuing to implement or enforce 11 unspecified “illegal actions, decisions, policies, and/or regulations” as well as 12 damages. (Id. at 6, 31-32.) 13 Plaintiff’s factual allegations begin with events from October 2014 (id. at 8, 14 16), and include a statement that the “parties” entered into a Settlement Agreement 15 in June 2018 (id. at 8, 18). Plaintiff alleges that defendants agreed to construct a 16 structure (a “sweat lodge”) for use in plaintiff’s religious exercises, referencing a 17 “Settlement Agreement” from case no. 16cv05672-TJH (JEM) (“case 16cv05672”). 18 (Id. at 8, 18.) Plaintiff then alleges that “defendants have breached the settlement 19 agreement and continue to burden the exercise of [plaintiff’s] sincere religious 20 beliefs.” (Id. at 8.) 21 In accordance with the terms of the Prison Litigation Reform Act of 1995 22 (“PLRA”), the Court has screened the Complaintprior to ordering service for purpose 23 of determining whether the action is frivolous or malicious; or fails to state a claim 24 on which relief may be granted; or seeks monetary relief against a defendant who is 25 immune from such relief. See 28 U.S.C. § 1915A; 42 U.S.C. § 1997e(c)(1). 26 The Court’s screening of the pleading under the foregoing statutes is governed 27 by the following standards. A complaint may be dismissed as a matter of law for 28 failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or 1 (2) insufficient facts alleged under a cognizable legal theory. See, e.g., Kwan v. 2 SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017); see also Rosati v. Igbinoso, 3 791 F.3d 1037, 1039 (9th Cir. 2015) (when determining whether a complaint should 4 be dismissed for failure to state a claim under the PLRA, the court applies the same 5 standard as applied in a motion to dismiss pursuant to Rule 12(b)(6)). In determining 6 whether the pleading states a claim on which relief may be granted, its allegations of 7 material fact must be taken as true and construed in the light most favorable to 8 plaintiff. See, e.g., Soltysik v. Padilla, 910 F.3d 438, 444 (9th Cir. 2018). However, 9 the “tenet that a court must accept as true all of the allegations contained in a 10 complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 11 (2009). Rather, a court first “discounts conclusory statements, which are not entitled 12 to the presumption of truth, before determining whether a claim is plausible.” 13 Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1129 (9th Cir. 2013); see also Chavez v. 14 United States, 683 F.3d 1102, 1108 (9th Cir. 2012). 15 Further, since plaintiff is appearing pro se, the Court must construe the 16 allegations of the pleadingliberally and must afford plaintiff the benefit of any doubt. 17 See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); see also Alvarez v. Hill, 518 18 F.3d 1152, 1158 (9th Cir. 2008) (because plaintiffwas proceeding pro se, “the district 19 court was required to ‘afford [him] the benefit of any doubt’ in ascertaining what 20 claims he ‘raised in his complaint’”) (alteration in original). Nevertheless, the 21 Supreme Court has held that “a plaintiff’s obligation to provide the ‘grounds’ of his 22 ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 23 recitation of the elements of a cause of action will not do. . . . Factual allegations 24 must be enough to raise a right to relief above the speculative level . . . on the 25 assumption that all the allegations in the complaint are true (even if doubtful in fact).” 26 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted, 27 alteration in original); see also Iqbal, 556 U.S. at 678 (To avoid dismissal for failure 28 to state a claim, “a complaint must contain sufficient factual matter, accepted as true, 1 to ‘state a claim to relief that is plausible on its face.’ . . . A claim has facial 2 plausibility when the plaintiff pleads factual content that allows the court to draw the 3 reasonable inference that the defendant is liable for the misconduct alleged.” (internal 4 citation omitted)). 5 In addition, Fed. R. Civ. P. 8(a) (“Rule 8”) states: 6 A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court’s 7 jurisdiction . . .; (2) a short and plain statement of the claim 8 showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in 9 the alternative or different types of relief. 10 11 (Emphasis added). Further, Rule 8(d)(1) provides: “Each allegation must be simple, 12 concise, and direct. No technical form is required.” Although the Court must 13 construe a pro se plaintiff’s pleadings liberally, a plaintiff nonetheless must allege a 14 minimum factual and legal basis for each claim that is sufficient to give each 15 defendant fair notice of what plaintiff’s claims are and the grounds upon which they 16 rest. See, e.g., Brazil v. United States Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 17 1995); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (a complaint must give 18 defendants fair notice of the claims against them). If a plaintiff fails to clearly and 19 concisely set forth factual allegations sufficient to provide defendants with notice of 20 which defendant is being sued on which theory and what relief is being sought against 21 them, the pleading fails to comply with Rule 8. See, e.g.,McHenry v. Renne, 84 F.3d 22 1172, 1177-79 (9th Cir. 1996); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 23 674 (9th Cir. 1981). A claim has “substantive plausibility” if a plaintiff alleges 24 “simply, concisely, and directly [the] events” that entitle him to damages. Johnson 25 v. City of Shelby, 574 U.S. 10, 12 (2014). Failure to comply with Rule 8 constitutes 26 an independent basis for dismissal of a pleading that applies even if the claims are 27 not found to be “wholly without merit.” See McHenry, 84 F.3d at 1179. 28 In addition, pursuant to Fed. R. Evid. 201(b)(2) & (c)(1), a Court may, on its 1 own motion, take judicial notice of matters of public record such as judicial 2 proceedings in an earlier action in this court. See, e.g., United States v. Brugnara, 3 856 F.3d 1198, 1209 (9th Cir. 2017) (a district court may properly take judicial notice 4 of the court’s own records under Fed. R. Evid. 201(b)); Rosales-Martinez v. Palmer, 5 753 F.3d 890, 894 (9th Cir. 2014) (“It is well established that we may take judicial 6 notice of judicial proceedings in other courts.”). 7 Following careful review of the Complaint, the Court finds that plaintiff’s 8 claims are insufficient to state a claim arising under federal law upon which relief 9 may be granted. Further, the pleading fails to comply with Rule 8 because it fails to 10 state a short and plain statement of each claim that is sufficient to give each defendant 11 fair notice of what plaintiff’s claims are and the grounds upon which they rest. In 12 addition, it appears to the Court that plaintiff is attempting to raise a claim for the 13 breach of a Settlement Agreement in case 16cv05672 over which this Court does not 14 have jurisdiction. For these reasons, the Complaint is dismissed with leave to amend. 15 See Rosati, 791 F.3d at 1039 (“A district court should not dismiss a pro se complaint 16 without leave to amend unless it is absolutely clear that the deficiencies of the 17 complaint could not be cured by amendment.”) (internal quotation marks omitted). 18 If plaintiff desires to pursue this action, he is ORDERED to file a First 19 Amended Complaint no later than thirty (30) days from the date of this Order, 20 remedying the deficiencies discussed herein. Further, plaintiff is admonished that, 21 if he fails to timely file a FirstAmended Complaintor fails to remedy the deficiencies 22 of this pleading, the Court will recommend that this action be dismissed without 23 further leave to amend and with prejudice for failure to state a claim and failure to 24 follow the Court’s orders.1 25 1 Plaintiff is advised that this Court’s determination herein that the allegations in the Complaint 26 are insufficient to state a particular claim should not be seen as dispositive of that claim. Accordingly, although this Court believes that you have failed to plead sufficient factual matter in 27 your pleading, accepted as true, to state a claim to relief that is plausible on its face, you are not 28 required to omit any claim or defendant in order to pursue this action. However, if you decide to 1 A. Judicial Notice 2 The Court takes judicial notice that plaintiff filed a previous civil rights action, 3 case 16cv05672, on July 29, 2016, in the Central District of California against 4 defendants D. Asuncion, then Acting Warden of CSP-LAC; S. Kernan, then 5 Secretary of the CDCR; E. Lake, then Acting Community Resources Manager at 6 CSP-LAC; J. Lazar, Chaplain at CSP-LAC; B. Russell, then Acting Community 7 Resources Manager at CSP-LAC; D. Skaggs, then Community Resources Manager 8 of the CDCR; and J. Soto, former Warden of CSP-LAC. The parties resolved the 9 case and agreed to a voluntary dismissal with prejudice pursuant to a Stipulation 10 filed on June 7, 2018. (case 16cv05672, ECF No. 67.) On June 11, 2018, the District 11 Court dismissed the action in accordance with Rule 41(a)(1)(A)(ii), pursuant to the 12 stipulation of the parties, and with prejudice. (Id., ECF No. 68.) The Order of the 13 District Court specified that there was “no prevailing party in the action.” (Id.) No 14 further action in the case was taken by the District Court; an interlocutory appeal to 15 the Ninth Circuit filed by defendants was voluntarily dismissed on June 14, 2018. 16 (Id., ECF Nos. 41, 69.) 17 The Court also takes judicial notice of a motion filed by defendants in case 18 16cv05672 on November 3, 2017, in which defendants summarized that action as 19 plaintiff’s lawsuit against seven prison officials and employees at CSP-LAC in part: 20 “Plaintiff alleges that Defendants have substantially burdened his exercise of Native 21 American religion by relocating one of the prison’s sweat lodge sites onto a 22 recreation yard in order to accommodate the building of a new medical facility.” In 23 that action, plaintiff alleged that he had participated in Native American religious 24 ceremonies with other Native American inmates at CSP-LAC Facility A’s sweat 25 26 Court, pursuant to the provisions of 28 U.S.C. §636, ultimately may submit to the assigned district 27 judge a recommendation that such claim be dismissed with prejudice for failure to state a claim, subject to your right at that time to file Objections with the district judge as provided in the Local 28 Rules Governing Duties of Magistrate Judges. 1 lodge until approximately October 2014. After the sweat lodge was relocated in July 2 2015, plaintiff alleged that the new location was unsuitable for the ceremonies. (case 3 16cv05672, ECF No. 61 at 7-8;see alsoECF No. 64 at 9-10.) According to plaintiff’s 4 Complaint in case 16cv05672, plaintiff raised claims alleging violations of RLUIPA 5 arising from the defendants’ alleged failure to provide an acceptable location for the 6 religious ceremonies, the Free Exercise Clause of the First Amendment arising from 7 defendants Soto, Russell, and Lazar’s failure to provide an acceptable place for 8 plaintiff’s exercise of his religion, and a claim under the First Amendment alleging 9 retaliation arising from plaintiff’s exercise of his rights to speech and petition the 10 courts. (Id., ECF No. 2 at 17-18.) 11 B. Alleged breach of the Settlement Agreement in Case 16cv05672 12 Plaintiff’s Complaint in this action alleges that defendants “have breached the 13 settlement agreement” (ECF No. 1 at 8), and he purports to raise his Fourth Claim 14 for “Breach of Settlement Agreement” (id. at 30). Plaintiff references specific 15 provisions of a Settlement Agreement from case 16cv05672, and he alleges that 16 provisions of the “Operations Manual” of the CDCR required that defendants take 17 certain actions. (Id. at 8, 18, 30-31.) Plaintiff seeks to have this Court declare that 18 actions of “defendants” that allegedly continue to obstruct plaintiff’s religious 19 practices “are in breach of settlement agreement.” (Id.at 32.) Plaintiff did not attach 20 a copy of the Settlement Agreement from case 16cv05672 that he references herein 21 to his Complaint in this action. 22 The Court takes judicial notice of the official docket in case 16cv05672, which 23 does not reflect that a Settlement Agreement was filed with the court in that action. 24 Further, the “Stipulation of Voluntary Dismissal With Prejudice” in that action does 25 not reference any settlement agreement. (case 16cv05672, ECF No. 67.) The 26 stipulation in that case states that plaintiff and defendants “have resolved this case in 27 its entirely.” (Id.) The order dismissing the action with prejudice specifies that the 28 action was dismissed “pursuant to the stipulation of the parties” in accordance with 1 Fed. R. Civ. P. 41(a)(1)(A)(ii), and it does not reference any settlement agreement. 2 (Id., ECF No. 68.) Accordingly, the court records from case 16cv05672 of which the 3 Court has taken judicial notice reflect that any private settlement agreement entered 4 into by plaintiff and the defendants in case 16cv05672 was not incorporated into the 5 dismissal order in that action, nor is such settlement agreement subject to judicial 6 enforcement in that action. 7 In general, a “district court has the equitable power to enforce summarily an 8 agreement to settle a case pending before it.” Callie v. Near, 829 F.2d 888, 890 (9th 9 Cir. 1987). However, the Settlement Agreement alleged in plaintiff’s current 10 Complaint was not entered into in connection with the present case. Further, 11 plaintiff’s case 16cv05672 and this case both allege claims arising from prison 12 conditions, and 18 U.S.C. § 3626 governs “[p]rospective relief in any civil action 13 with respect to prison conditions.” As relevant herein, pursuant to 18 U.S.C. 14 § 3626(c)(2) and § 3626(g)(6), a private settlement agreement entered into by parties 15 to a lawsuit with respect to prison conditions is “not subject to court enforcement,” 16 and the parties may raise a claim that “a private settlement agreement has been 17 breached” in state court. 18 “Federal courts are courts of limited jurisdiction, possessing only that power 19 authorized by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) 20 (internal quotation marks omitted). “A federal court is presumed to lack jurisdiction 21 in a particular case unless the contrary affirmatively appears.” Stevedoring Servs. of 22 Am. Inc. v. Eggert, 953 F.2d 552, 554 (9th Cir. 1992). To the extent that plaintiff 23 intends to raise a separate claim herein that the Settlement Agreement that allegedly 24 resulted in the dismissal of case 16cv05672 was breached by any defendant in this 25 action, it is clear that the existence of an agreement that resulted in the dismissal of a 26 case in federal court does not give rise to federal jurisdiction in a subsequent federal 27 action. See, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 380-81 28 (1994) (an agreement that is part of the dismissal of a case in federal court “is not a 1 sufficient basis for a federal court’s jurisdiction”); Hajro v. United States Citizenship 2 & Immigration Servs., 811 F.3d 1086, 1099 (9th Cir. 2016) (a “district court does not 3 have the inherent power to enforce the terms of a settlement agreement under the 4 doctrine of ancillary jurisdiction”); Harry v. Perkins, 735 Fed. Appx. 296, 297 (9th 5 Cir. 2018) (an alleged breach of the terms of a private settlement agreement reached 6 inaprior action alleging a claim under RLUIPAagainst prison officials, absent more, 7 is not enforceable in federal court). Here, it appears from the court records of which 8 the Court has taken judicial notice that the dismissal stipulated to by the parties in 9 case 16cv05672 did not contain an explicit retention of federal jurisdiction and a 10 settlement agreement was not incorporated into the parties’ stipulation for dismissal 11 or the district court’s order dismissing that action. See, e.g., Kelly v. Wengler, 822 12 F.3d 1085, 1095 (9th Cir. 2016) (the stipulation for dismissal explicitly incorporated 13 the parties’ settlement agreement, the settlement agreement was attached as an 14 exhibit to the stipulation, and in the agreement “the parties agreed the district court 15 would retain ancillary jurisdiction to enforce the agreement”); Kokkonen, 511 U.S. 16 at 381; Kang v. Harrison, 789 Fed. Appx. 68, 69 (9th Cir. 2019) (where a district 17 court’s dismissal order contained an explicit provision retaining jurisdiction to 18 enforce a settlement agreement, the provision was sufficient to confer subject matter 19 jurisdiction upon thatdistrict court to enforce the parties’settlement agreement)(now 20 citable for its persuasive value pursuant to Ninth Circuit Rule 36-3). Because the 21 dismissal order in case 16cv05672 dismissed that action with prejudice without 22 retention of federal jurisdiction, federal jurisdiction over the parties’ dispute in that 23 action terminated upon its dismissal on June 11, 2018. (See case 16cv05672, ECF 24 No. 68.) 25 Accordingly, it appears that plaintiff’s allegations that the defendants in case 26 16cv05672 breached a Settlement Agreement in that action must be raised in state 27 court. See 18 U.S.C. § 3626(c)(2). 28 1 C. Official Capacity Claims 2 Plaintiff names each defendant, all of whom appear to be officials or 3 employees of the CDCR, in his or her official capacity. (ECF No. 1 at 3-4, 10-12.) 4 Further, plaintiff appears to seek damages against all defendants. (Id. at 6, 32.) 5 The Eleventh Amendment bars federal jurisdiction over suits by individuals 6 against a State and its instrumentalities or agencies, unless either the State consents 7 to waive its sovereign immunity or Congress abrogates it. Pennhurst State Sch. & 8 Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984). In addition, “the eleventh 9 amendment bars actions against state officers sued in their official capacities for past 10 alleged misconduct involving a complainant’s federally protected rights, where the 11 nature of the relief sought is retroactive, i.e., money damages.” Bair v. Krug, 853 12 F.2d 672, 675 (9th Cir. 1988). To overcome this Eleventh Amendment bar, the 13 State’s consent or Congress’ intent must be “unequivocally expressed.” Pennhurst, 14 465 U.S. at 99. While California has consented to be sued in its own courts pursuant 15 to the California Tort Claims Act, such consent does not constitute consent to suit in 16 federal court. See BV Engineering v. Univ. of Calif., Los Angeles, 858 F.2d 1394, 17 1396 (9th Cir. 1988). Finally, Congress has not repealed state sovereign immunity 18 against suits brought under 42 U.S.C. § 1983. 19 Accordingly, plaintiff is barred by the Eleventh Amendment from seeking 20 damages from any employee of the CDCR in his or her official capacity. 21 D. Rule 8 22 The Court finds that plaintiff’s Complaint violatesRule 8 in thattheComplaint 23 fails to allege a minimum factual and legal basis for each claim that is sufficient to 24 give each defendant fair notice of what plaintiff’s claims are and which factual 25 allegations give rise to each claim. 26 First, the Complaint is confusing: it contains two caption pages, two lists of 27 defendants, two requests for relief, two signatures pages (with different dates); and 28 plaintiff repeats some general allegations in multiple places (e.g., plaintiff is a 1 “practitioner of traditional Native American religion and is an inmate leader of Native 2 American Sweat Lodge Ceremonies at the Facility ‘A’ yard at CSP-LAC” (ECF No. 3 1 at 8, 10, see also 13-15)). Additionally, the Complaint includes lengthy factual 4 allegations concerning Native American religious ceremonies and the history of such 5 ceremonies at CSP-LAC in general, and since October 2014 in particular (see id. at 6 8-9, 13-18, 20-21); a discussion of the Settlement Agreement in case 16cv05672 (id. 7 at 8-9, 18); and numerous unsupported and conclusory allegations concerning general 8 practices at CSP-LAC that fail to reference specific dates or defendants (see, e.g., id. 9 at 9, 19-21). None of these allegations is clearly relevant to the federal civil rights 10 claims that plaintiff appears to be raising in this action. Plaintiff’s extensive and 11 repetitive allegations concerning incidents that occurred on unspecified dates and 12 involve unspecified individuals renders it extremely difficult for the Court to discern 13 what factual allegations in the 32-page Complaint pertain to each of the three claims 14 arising under federal law that plaintiff alleges in this action against four defendants. 15 Moreover, in determining if the Complaint states a plausible claim on which relief 16 may be granted, the Court first discounts plaintiff’s conclusory statements, “which 17 are not entitled to the presumption of truth.” Salameh, 726 F.3d at 1129. 18 Further, plaintiff incorporates all of his allegations and prior claims into each 19 of his three federal claims, and he appears to be raising each claim against all named 20 defendants. (ECF No. 1 at 27-29.) The Complaint, however, names one defendant 21 who is not employed at plaintiff’s institution (CSP-LAC), as well as the Warden of 22 CSP-LAC. Plaintiff does not set forth any specific factual allegations concerning 23 Secretary Diaz or Warden Johnson. 24 In order to state a federal civil rights claim against a specific defendant, 25 plaintiff must allege that the defendant deprived him of a right guaranteed under the 26 United States Constitution or a federal statute, and that the “deprivation was 27 committed by a person acting under color of state law.” See West v. Atkins, 487 U.S. 28 42, 48 (1988). “A person deprives another ‘of a constitutional right, within the 1 meaning of section 1983, if he does an affirmative act, participates in another’s 2 affirmative acts, or omits to perform an act which he is legally required to do that 3 causes the deprivation of which [the plaintiff complains].’” Leer v. Murphy, 844 4 F.2d 628, 633 (9th Cir. 1988) (emphasis and alteration in original). Here, plaintiff’s 5 Complaint does not set forth factual allegations that each named defendant took an 6 affirmative act, participated in another’s affirmative act, or omitted to perform an act 7 that plaintiff alleges caused each of his three federal civil rights claims. Rather, 8 plaintiff includes only conclusory allegations such as that Warden Johnson “failed to 9 respect” plaintiff’s religious beliefs and “has sanctioned numerous policies that 10 burden [plaintiff’s] free exercise” of his religion. (ECF No. 1 at 11.) 11 In addition, plaintiff references various requirements of CDCR’s operations 12 manual and the California Penal Code. (Id. at 16, 18.) To the extent that plaintiff 13 may be attempting to allege a claim herein arising from a violation of state law or 14 prison regulations, a claim that arises under state law fails to allege a deprivation of 15 a federal constitutional right. 16 Further, plaintiff’s Complaint sets forth factual allegations concerning events 17 that began in 2014 and specifically includes allegations concerning “events starting 18 before the Settlement Agreement.” (ECF No. 1 at 16 (capitalization altered from 19 original).) Plaintiff’s Complaint, however,fails to clearly set forth factual allegations 20 concerning alleged actions taken by defendants or specific events that occurred after 21 the Settlement Agreement in case 16cv05672. As discussed above, plaintiff’s case 22 16cv05672 arose from similar alleged conduct by the then Secretary of the CDCR 23 and officials at CSP-LAC, including the former Warden at CSP-LAC and current 24 defendants Lazar and Lake. In his earlier case, plaintiff raised claims alleging 25 violations of RLUIPA arising from the defendants’ alleged failure to provide an 26 acceptable location for the sweat lodge in 2015 and pursuant to the Free Exercise 27 Clause of the First Amendment arising from defendants’ alleged failure to provide 28 an acceptable place for plaintiff’s exercise of his religion. (Seecase 16cv05672, ECF 1 No. 2 at 17-18.) That case was dismissed with prejudice as to plaintiff’s claims that 2 these defendants violated plaintiff’s right to free exercise of his religion and under 3 RLUIPA. Pursuant to plaintiff’s stipulation to dismiss his claims with prejudice in 4 case 16cv05672, plaintiff is prohibited from stating claims herein that arise from the 5 same factual allegations that already have been dismissed with prejudice in hisearlier 6 action in federal court. Accordingly, plaintiff’s factual allegations concerning events 7 that occurred prior to his voluntary dismissal with prejudice of case 16cv05672 in 8 June 2018 fail to give rise to any claims in this action on which relief may be granted. 9 In addition, plaintiff’s Complaint alleges a claim for “retaliation” in violation 10 of the First Amendment. (ECF No. 1 at 29.) Plaintiff alleges that unspecified 11 “[d]efendants retaliated against [plaintiff] for filing a lawsuit” and that “defendants 12 obstructed [plaintiff’s] attempts to exhaust the administrative remedies by rejecting 13 several rounds of grievances.” (Id.) Plaintiff also alleges that defendant Lake 14 retaliated against him by “arbitrarily instituting various policies that substantially 15 burden the exercise of [plaintiff’s] beliefs.” (Id. at 30.) Plaintiff does not specify 16 which policies he alleges Lake instituted in retaliation for what type of protected 17 conduct by plaintiff. Further, because plaintiff incorporates the first 75 paragraphs 18 of his Complaint into a claim for retaliation that he raises against all defendants (id. 19 at 29), it is difficult to discern which alleged adverse action by which defendant 20 plaintiff is purporting to allege was taken because of plaintiff’s protected conduct. 21 An action taken by a correctional officer in retaliation for the exercise of an inmate’s 22 First Amendment right is actionable under § 1983. See, e.g., Shepard v. Quillen, 840 23 F.3d 686, 688 (9th Cir. 2016); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995). 24 Filing a grievance with prison officials is protected activity under the First 25 Amendment. See Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). However, 26 to state a claim under the First Amendment against a specific defendant, plaintiff 27 must set forth factual allegations showing that the defendant took adverse action 28 against plaintiff because of plaintiff’s protected conduct. Plaintiff alleges that 1 “defendants” retaliated for his lawsuit and grievances, by such actions as applying 2 “arbitrary policies” and refusing to allow plaintiff to apply for a prison position, but 3 plaintiff does not link any specific action by any defendant to a protected activity. 4 (See, e.g., ECF No. 1 at 9, 22-26.) Plaintiff’s “naked assertion[s]” of retaliatory 5 conduct are insufficient to allow each defendant to discern what facts apply to 6 plaintiff’s retaliation claim against each defendant. See, e.g., Iqbal, 556 U.S. at 678. 7 Finally, to the extent that plaintiff is purporting to allege a claim against 8 Warden Johnson arising from his role as “chief executive officer of CSP-LAC” (ECF 9 No. 1 at 11), supervisory personnel such as a warden are not liable under § 1983 on 10 a theory of respondeat superior. See, e.g., Iqbal, 556 U.S. at 676 (“Government 11 officials may not be held liable for the unconstitutional conduct of their subordinates 12 under a theory of respondeat superior”); Redman v. County of San Diego, 942 F.2d 13 1435, 1446 (9th Cir. 1991) (en banc). Plaintiff sets forth no specific facts to raise a 14 reasonable inference that Warden Johnson set “in motion a series of acts by others,” 15 or “knowingly refus[ed] to terminate a series of acts by others, which [the supervisor] 16 knew or reasonably should have known would cause others to inflict a constitutional 17 injury.” Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011). Accordingly, the 18 Complaint also violates Rule 8 because it fails to allege a minimum factual basis for 19 plaintiff’s claims against a supervisory defendant that is sufficient to give fair notice 20 to such defendant of the grounds upon which those claims rest. 21 Because it is not clear what actions each defendantis alleged to have taken that 22 caused any alleged deprivationof plaintiff’s federal civil rights that is alleged to have 23 occurred after the dismissal with prejudice of plaintiff’s case 16cv05672, the 24 Complaint fails to meet the minimal requirement of Rule 8 that a pleading allow each 25 defendant to discern what he or she is being sued for. See McHenry, 84 F.3d at 1177; 26 see also Twombly, 550 U.S. at 555 (“[f]actual allegations must be enough to raise a 27 right to relief above the speculative level”). The Court is mindful that, because 28 plaintiff is an inmate appearing pro se, the Court must construe the allegations of the 1 Complaint liberally and must afford plaintiff the benefit of any doubt. That said, the 2 Supreme Court has made clear that the Court has “no obligation to act as counsel or 3 paralegal to pro se litigants.” Pliler v. Ford, 542 U.S. 225, 231 (2004). In addition, 4 the Supreme Court has held that, while a plaintiff need not plead the legal basis for a 5 claim, the plaintiff must allege “simply, concisely, and directly events” that are 6 sufficient to inform the defendants of the factual grounds for each claim. Johnson, 7 135 S. Ct. at 347. 8 Accordingly, the Court finds that plaintiff’s Complaint violates Rule 8 because 9 it fails to set forth a simple, concise, and direct statement of the factual basis of each 10 of plaintiff’s federal civil rights claims against each defendant. If plaintiff wishes to 11 state any federal civil rights claim against any named defendant, plaintiff should set 12 forth each claim separately, stating his factual allegations for each claim against each 13 defendant under the standards set forth above. 14 ************ 15 If plaintiff still desires to pursue this action, he is ORDERED to file a First 16 Amended Complaint no later than thirty (30) days after the date of this Order, 17 remedying the pleading deficiencies discussed above. The FirstAmended Complaint 18 should bear the docket number assigned in this case; be labeled “First Amended 19 Complaint”; and be complete in and of itself without reference to the original 20 Complaint, or any other pleading or document. 21 Plaintiff is admonished that, irrespective of his pro se status, if plaintiff wishes 22 to proceed with this action, then he must comply with the Federal Rules of Civil 23 Procedure and the Local Rules of the United States District Court for the Central 24 District of California. See, e.g., Briones v. Riviera Hotel & Casino, 116 F.3d 379, 25 382 (9th Cir. 1997) (“pro se litigants are not excused from following court rules”). 26 The clerk is directed to send plaintiff a blank Central District civil rights 27 complaint form, which plaintiff is encouraged to utilize. 28 1 In addition, if plaintiff no longer wishes to pursue this action, then he may 2 || request a voluntary dismissal of the action pursuant to Federal Rule of Civil 3 || Procedure 41(a). The clerk also is directed to attach a Notice of Dismissal form for 4 || plaintiff’s convenience. 5 Plaintiff is further admonished that, if he fails to timely file a First 6 || Amended Complaint, or he fails to remedy the deficiencies of this pleading as 7 || discussed herein, then the Court will recommend that the action be dismissed 8 || with prejudice on the grounds set forth above and for failure to diligently 9 | prosecute. 10 IT IS SO ORDERED. 11 12 || DATED: 3/19/2020 13 (thy Wie 14 ALEXANDER F.MacKINNON 15 UNITED STATES MAGISTRATE JUDGE 16 || Attachment: Form CV-066 Form CV-009 17 18 19 20 21 22 23 24 25 26 27 28

16