1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAVID MISCH, Case No. 22-cv-05278-HSG

8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE

TO AMEND; DISMISSING PLAINTIFF

9 v. WASHINGTON; DENYING EX PARTE

REQUEST FOR TEMPORARY

10 ALAMEDA COUNTY SHERIFF’S RESTRAINING ORDER OFFICE, et al., 11 Re: Dkt. No. 3 Defendants. 12 13 David Misch and Keith H. Washington, inmates at Santa Rita Jail, have filed a pro se 14 action pursuant to 42 U.S.C. § 1983. The complaint (Dkt. No. 1) is now before the Court for 15 review under 28 U.S.C. § 1915A. Also pending before the Court is Plaintiffs’ motion for a 16 temporary restraining order. Dkt. No. 3. 17 DISCUSSION 18 A. Standard of Review 19 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 21 § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims 22 that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 23 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 24 (2). Pro se pleadings must, however, be liberally construed. See United States v. Qazi, 975 F.3d 25 989, 993 (9th Cir. 2020). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts are not 1 grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). 2 While Rule 8 does not require detailed factual allegations, it demands more than an unadorned, 3 the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). 4 A pleading that offers only labels and conclusions, or a formulaic recitation of the elements of a 5 cause of action, or naked assertions devoid of further factual enhancement does not suffice. Id. 6 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a 7 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 8 violation was committed by a person acting under the color of state law. See West v. Atkins, 487 9 U.S. 42, 48 (1988). 10 B. Complaint 11 The complaint names as defendants the Alameda County Sheriff’s Office, Aramark 12 Corporation, current Alameda County Sheriff Greg Ahearn, and Alameda County commander and 13 sheriff-elect Yessica Sanchez. The complaint makes the following factual and legal allegations. 14 Aramark Corporation and Alameda County knowingly serve inmates kosher/halal meals that 15 provide inadequate nutrition and calories, and serve these meals on unclean trays, in violation of 16 the Eighth Amendment’s prohibition on cruel and unusual punishment, the Religious Land Use 17 and Institutionalized Persons Act, the First Amendment’s free exercise, and the Equal Protection 18 Clause. Santa Rita Jail refuses to process inmates’ grievances, obstructing inmates’ First 19 Amendment right of access to the courts. Plaintiff Misch has become a target for retaliation 20 because of his attempts to access the court and because of his grievance activity and, on June 15, 21 2022, plaintiff Misch was subject to excessive force by two unnamed deputies. 22 C. Dismissal With Leave to Amend 23 The complaint will be dismissed with leave to amend because it suffers from numerous 24 deficiencies. The Court lists the main deficiencies below. 25 First, this action may not proceed with co-plaintiffs. Generally, a pro se plaintiff is 26 prohibited from pursuing claims on behalf of others in a representative capacity. See Simon v. 27 Hartford Life, Inc., 546 F.3d 661, 664-65 (9th Cir. 2008); see also Russell v. United States, 308 1 anyone other than himself”); see also Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) 2 (per curiam) (“Ability to protect the interests of the class depends in part on the quality of counsel, 3 and we consider the competence of a layman representing himself to be clearly too limited to 4 allow him to risk the rights of others.”) (citation omitted). The use of co-plaintiffs presents a 5 procedural problem unique to prisoner litigation. The main problem with having unrepresented 6 inmates proceeding as co-plaintiffs is that inmates lack control over their ability to access each 7 other to prepare documents and prosecute a case. Inmates are frequently moved. The plaintiffs 8 may not have access to each other in the future to prepare documents and to discuss the case. 9 Even inmates who initially are physically close to each other often do not remain so for the 10 months or years that it takes for a case to work its way through to judgment. Perhaps one plaintiff 11 will be moved to a different facility or be released from custody all of which will make their joint 12 prosecution of this case inordinately more difficult. The slow pace of plaintiffs’ communications 13 with each other will result in extensive delays at each point in the litigation where they are 14 required to file anything with the court. Thus, this case will be delayed as any potential filing 15 from the plaintiffs is shuttled back and forth between the plaintiffs until both are comfortable 16 signing it. One alternative is to permit the plaintiffs to file separate documents, but this essentially 17 results in multiple cases within a case, which has few benefits to match the substantial confusion 18 caused. This situation is especially likely here where Mr. Washington is also under the custody of 19 the federal government and may be moved to a federal prison at some point. 20 “A district court possesses inherent power over the administration of its business.” 21 Spurlock v. Federal Bureau of Investigation, 69 F.3d 1010, 1016 (9th Cir. 1995); see Atchison, 22 Topeka & Santa Fe Ry. Co. v. Hercules Inc., 146 F.3d 1071, 1074 (9th Cir. 1998) (district court 23 possesses inherent power to control its docket, as long as power is exercised in a manner 24 consistent with rules and statutes). This power includes the authority to promulgate and enforce 25 rules for the management of litigation and the court’s docket. Spurlock, 69 F.3d at 1016 (citations 26 omitted); see also Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (inherent powers are tools 27 for “‘control necessarily vested in courts to manage their own affairs so as to achieve the orderly 1 proceed in separate cases will make their claims easier to manage and resolve. The Court 2 DISMISSES plaintiff Washington from this action without prejudice to filing a separate action. 3 The Clerk is directed to send Mr. Washington two copies of the court’s complaint form. Mr. 4 Washington’s request for leave to proceed in forma pauperis is DENIED as moot. Dkt. No. 2. 5 Second, some of the causes of action in this case appear to be duplicative of claims raised 6 in another case. Plaintiff Misch appears to be pursuing at least two of the claims raised here in C 7 No. 19-cv-07423 JSC, Gonzalez v. Ahern et al. Mr. Misch is one of the co-plaintiffs in Gonzales 8 and has sought to be certified as a class representative if a class is certified. Dkt. No. 150. 9 Defendants Alameda County Sheriff’s Office and Aramark are also named as defendants in 10 Gonzalez. Two of the claims raised in Gonzalez are (1) the meals provided to inmates by 11 Alameda County and Aramark Corp. are insufficient in nutrition and calories, due to reduced 12 portion sizes and spoiled, inedible food, Gonzalez, Dkt. No. 180 at 62-64 (Fifth Amended 13 Complaint, Claim Nos. 1 and 2), and (2) inmates are subject to retaliation for filing grievances 14 complaining about conditions of confinement, Dkt. No. 180 at 71-72 (Fifth Amended Complaint, 15 Claim No. 7). These claims overlap with, and may be duplicative of, plaintiff Misch’s claims that 16 (1) kosher/halal meals are insufficient in nutrition and calories due to reduced portion sizes and 17 spoiled, inedible food and (2) defendant Alameda County has a custom or practice of retaliating 18 against inmates who file grievances, which resulted in the June 15, 2022 assault on plaintiff 19 Misch. If these two claims in Gonzalez are duplicative of some of the claims raised in this action, 20 the claims in this action must be dismissed. Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 21 1988) (duplicative or repetitious litigation of virtually identical causes of action is subject to 22 dismissal under 28 U.S.C. § 1915 as malicious). An in forma pauperis complaint that merely 23 repeats pending or previously litigated claims may be considered abusive and dismissed under § 24 1915. Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995); Bailey, 846 F.2d at 1021. 25 An in forma pauperis complaint repeating the same factual allegations asserted in an earlier case, 26 even if now filed against new defendants, therefore is subject to dismissal as duplicative. Bailey, 27 846 F.2d at 1021; Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir. 1975). 1 Fed R. Civ. P. 20(a)(2) provides that all persons “may be joined in one action as defendants if: 2 (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect 3 to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and 4 (B) any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 5 20(a)(2). The upshot of these rules is that “multiple claims against a single party are fine, but 6 Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2.” 7 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). The claim that plaintiff Misch was subject to 8 excessive force in violation of the Eighth Amendment on June 15, 2022 either for filing 9 grievances (as alleged in Dkt. No. 1) or for participating in a court hearing or the Gonzalez case 10 (as alleged in Dkt. No. 3) is unrelated to the ways in which the kosher/halal diet allegedly violates 11 plaintiff Misch’s constitutional rights. These two claims do not arise out of the same occurrence 12 or series of occurrences and do not share a common question of law or fact with the claims 13 regarding the kosher/halal diet. To proceed in this action, plaintiff Misch must decide which set of 14 claims he wishes to pursue the claims: the claims arising out of the June 15, 2022 assault or the 15 claims regarding the kosher/halal diet. He may pursue the other claim(s) in a separate action. 16 The complaint is DISMISSED with leave to amend because it appears that Plaintiff could 17 remedy the above-identified deficiencies. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) 18 (district court should grant leave to amend unless pleading could not possibly be cured by the 19 allegation of other facts). Only plaintiff Misch may proceed in this action going forward. 20 D. Ex Parte Temporary Restraining Order 21 Plaintiffs have filed a motion seeking a temporary restraining order (“TRO”) ex parte, Dkt. 22 No. 3, along with a proposed order, Dkt. No. 3-1, and a memorandum of law in support of the 23 TRO, Dkt. No. 4. The three pleadings raise different issues, some overlapping. 24 The memorandum of law alleges that the kosher-halal meals are inadequate, subpar and 25 deficient and make Plaintiffs choose between their religious beliefs and going hungry; that 26 Plaintiffs’ equal protections are being violated by the inadequate meals and that they are being 27 punished for choosing a kosher/halal diet and for filing grievances; and that the hard plastic trays 1 contain food from non-halal meals because they are not properly cleaned. The memorandum of 2 law does not specify what relief is requested and does not reference the June 15, 2022 assault. See 3 generally Dkt. No. 3. 4 The TRO request consists of a declaration by Misch, which discusses the June 15, 2022 5 assault and alleges that the assault was in retaliation for plaintiff Misch exercising his First 6 Amendment rights. There is no mention of the kosher/halal meals. See generally Dkt. No. 4. 7 The proposed order to show cause asks Defendants to show cause why a TRO/PI should 8 not be issued prohibiting Defendants from serving religious meals that do not contain the proper 9 amounts, portions, items, and nutritional and caloric values; from serving religious meals on 10 unsanitary trays that have cross-contamination; and from harassing, retaliating or baiting Plaintiffs 11 for exercising their First Amendment right to access the courts. See generally Dkt. No. 3-1. 12 Fed. R. Civ. P. 65(b) provides that a temporary restraining order may be granted without 13 written or oral notice to the adverse party or that party’s attorney only if: (1) it clearly appears 14 from specific facts shown by affidavit or by the verified complaint that immediate and irreparable 15 injury, loss or damage will result to the applicant before the adverse party or the party’s attorney 16 can be heard in opposition, and (2) the applicant’s attorney certifies in writing the efforts, if any, 17 which have been made to give notice and the reasons supporting the claim that notice should not 18 be required. See Fed. R. Civ. P. 65(b). Plaintiffs’ pleadings fail to meet the requirements set 19 forth in Fed. R. Civ. P. 65(b) for an ex parte TRO. Plaintiffs merely state conclusorily that they 20 will suffer irreparable harm. The few facts alleged do not indicate a likelihood of immediate and 21 irreparable injury. If, as alleged in Gonzalez and some of Plaintiffs’ pleadings, the portion size of 22 all inmate meals, not just kosher/halal meals, is inadequate, the inadequate portion size of 23 kosher/halal meals does not violate the First Amendment’s free exercise clause or the Equal 24 Protection Clause. There is also no indication that either plaintiff is currently at risk for retaliatory 25 behavior by correctional officials. There are no specific facts alleged showing that plaintiff 26 Washington has been retaliated against or faced potential retaliation, and no specific facts alleged 27 that the June 15, 2022 assault was part of ongoing retaliation against either plaintiff. Finally, there 1 Gonzalez. The Court therefore DENIES the request for a temporary restraining order. 2 CONCLUSION 3 For the foregoing reasons, the Court orders as follows. 4 1. Plaintiff Keith H. Washington is DISMISSED from this action without prejudice to 5 filing a separate action. The Clerk is directed to send Mr. Washington two copies of the court’s 6 || complaint form. Mr. Washington’s request for leave to proceed in forma pauperis is DENIED as 7 moot. Dkt. No. 2. 8 2. The Court DISMISSES the complaint with leave to amend. Within twenty-eight 9 || (28) days of the date of this order, plaintiff Misch shall file an amended complaint that addresses 10 || the deficiencies identified above. The amended complaint must include the caption and civil case 11 number used in this order, Case No. C 22-05278 HSG (PR) and the words “AMENDED 12 || COMPLAINT” on the first page. If using the court form complaint, Plaintiff must answer all the 5 13 questions on the form in order for the action to proceed. An amended complaint completely 14 || replaces the previous complaints. See Lacey v. Maricopa Cnty., 693 F.3d 896, 925 (9th Cir. 3 15 2012). Accordingly, plaintiff Misch must include in his amended complaint all the claims he 16 || wishes to present and all of the defendants he wishes to sue, and may not incorporate material 3 17 from the prior complaint by reference. Failure to file an amended complaint in accordance with 18 || this order in the time provided will result in dismissal of this action without further notice to 19 || plaintiff Misch. The Clerk shall include two copies of the court’s complaint form with a copy of 20 || this order to plaintiff Misch. 21 3. The Court DENIES Plaintiffs’ ex parte request for a temporary restraining order. 22 || Dkt. No. 3. 23 This order terminates Dkt. No. 3. 24 IT IS SO ORDERED. 25 || Dated: 9/21/2022 26 Alepurel 5 Mb □□□ 7 HAYWOOD S. GILLIAM, JR. United States District Judge 28