Coleman v. Foulk

CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

Plaintiff is a state prisoner proceeding without counsel. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and California law. This proceeding was referred to this court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.

Plaintiff filed his original complaint on August 23, 2013. On February 26, 2014, the court screened the complaint, as the court is required to do under 28 U.S.C. § 1915A(a), and dismissed with leave to amend. The court noted, in part:

Plaintiff's complaint is 80 pages long. It was handwritten by plaintiff in small, at times illegible print. Most of the complaint is a recitation of allegations of fact which are not material to any valid cause of action upon which plaintiff could proceed in this court. Because the complaint fails, in any sense, to comply with the requirement that a complaint contain only a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), the complaint will be dismissed.
The court will, however, grant leave to amend. In the amended complaint, plaintiff shall not present allegations of fact which do
not support any claim upon which plaintiff may obtain relief in this court. While the court understands that plaintiff is a pro se litigant, and therefore entitled to a liberal interpretation of his pleadings, plaintiff is not entitled to bombard the court and defendants with page after page of meaningless allegations in a flailing attempt to state a claim upon which the court could grant relief. If plaintiff believes he has been harmed to a degree which is actionable in this court, plaintiff should identify specifically how he was harmed (i.e. what actionable injury he has suffered) and then include only those facts which identify who actually caused him harm. Plaintiff must omit meaningless background information and defendants who either had no part in causing plaintiff harm or whom plaintiff merely suspects had some part without any facts to back up his suspicions.

Plaintiff submitted his amended complaint on May 1, 2014 which plaintiff limited to 19 handwritten pages. After this complaint was screened, plaintiff was permitted to proceed on the following claims against the following defendants:

1. Claims arising under the First Amendment for denial of the right of access to courts against defendants Swartz, Arnwald, Hanned, Tenya and Davis.

2. Claim arising under the First Amendment for retaliation for exercise of First Amendment rights against defendant Davis.

3. Claims against defendant Nelson and Hale for denial of access to courts as described on page 3 of the district court's June 2, 2015 order. ECF No. 26. All other claims and defendants identified by plaintiff in his amended complaint were dismissed.

On November 3, 2015, defendants filed a motion to dismiss. In response to the motion, plaintiff sought leave to file a second amended complaint. Among other things, plaintiff indicated a desire to attempt to cure some of the deficiencies with plaintiff's pleadings identified by defendants in their motion to dismiss and to allege compliance with the California Government Claims Act with respect to a claim arising under California law. After having reviewed defendants' motion to dismiss, after reviewing plaintiff's proposed second amended complaint, and in the spirit of Federal Rule of Civil Procedure 15(a) which allows litigants to amend their pleadings after a motion to dismiss is filed in order to cure deficiencies highlighted in the motion to dismiss, the court granted plaintiff's motion to amend and indicated the court would conduct a full screening of plaintiff's second amended complaint at a later date. The court has now conducted that screening.

As with plaintiff's original complaint, the second amended complaint is much too long. While the second amended complaint is twenty 8 1/2 x 11 pages long, plaintiff has modified the font size, line spacing and margins so that those 20 pages include approximately 40 pages of material if standard font size, margins and spacing were used. Also, as with the original complaint, much of the material included is either immaterial in terms of stating a claim upon which relief can be granted in this court or is repetitive. Further, plaintiff did not simply attempt to cure the defects with the claims the court already identified as actionable and attempt to plead compliance with the Government Claims Act as he indicated he would do in his motion for leave to amend. Instead, he also included claims and defendants which have already been screened out, and countless other irrelevant factual allegations. For these reasons, plaintiff's second amended complaint, like his original complaint, violates Federal Rule of Civil Procedure 8(a)(2) and will be dismissed.

The court will give plaintiff an opportunity to comply with Rule 8(a)(2) in a third amended complaint. And while the court is aware that plaintiff is a pro se litigant, and therefore entitled to some leeway, if plaintiff ignores the court's directions with respect to contents of the third amended complaint as plaintiff did with respect to the contents of the second amended complaint, and still violates Rule 8(a)(2), the court will recommend that the third amended complaint be dismissed under Rule 41(b) for failing to follow court orders and that this case be closed. /////

Plaintiff's third amended complaint must be in substantial compliance with the following:

1. Plaintiff's third amended complaint shall not be longer than 20 pages with normal margins and font size. If plaintiff elects to handwrite his third amended complaint, the size of the text must resemble that of the text in the document he filed March 16, 2016, which is attached to this order.

2. Plaintiff must not include anyone as a defendant in his third amended complaint who has not already appeared in this action; nor may he add any additional claims. If plaintiff wishes to add defendants or claims, he must file a motion seeking leave to do so and in such a motion he will have to explain his delay in failing to present those claims/defendants earlier.

3. Plaintiff must not be repetitive and must not include information or statements of law not material to his claims.

4. Plaintiff should not sue any defendant in their official capacity as an employee of the California Department of Corrections and Rehabilitation, since such defendants are immune from suit under the Eleventh Amendment. Will v. Mich. Dept. of State Police., 491 U.S. 58, 71 (1989). While state officials can be sued in their official capacities for injunctive relief under 42 U.S.C. § 1983, id. at n. 10, this would not be appropriate in this case as plaintiff seeks relief for past wrongs, not current violations of law.

5. Plaintiff must not include allegations of wrongdoing by defendants without also setting forth the injury the alleged wrongdoing caused.

6. Plaintiff should not provide information regarding exhaustion of administrative remedies as failure to exhaust is an affirmative defense. Jones v. Bock, 549 U.S. 199, 216 (2007).

7. If plaintiff wishes to include a "statement of facts," it should be limited to relevant assertions of fact and should not include characterizations or summaries of the facts. Also, a statement of facts should not include citations to legal authority, interpretations of law or asserted violations of law which are not material to plaintiff's claims. In a separate section, plaintiff should identify his legal claims based upon the allegations of fact. The court will then determine whether the allegations of fact permit plaintiff to proceed on the claims he identifies.

8. As a general rule, plaintiff may include as many claims as he likes with respect to one defendant in one action. However, claims against additional defendants in the same action must be related in some meaningful way to claims asserted against the first defendant. See Fed. R. Civ. P. 20(A)(2).

Most of plaintiff's claims appear to concern the alleged denial of access to courts. Plaintiff is informed that prisoners have a Constitutional right of access to courts. Bounds v. Smith, 430 U.S. 817, 821 (1977). Generally speaking, there are two types of denial of access to courts claims: 1) those involving the right to assistance through, among other things, provision of legal materials or legal advice; and 2) those involving the literal denial of access to the courts, e.g. not permitting an inmate to communicate with a court. Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) overruled on other grounds in Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015). With respect to an inmate's challenge to his conviction or sentence and with respect to actions under 42 U.S.C. § 1983 for violations of civil rights, some affirmative assistance is required. Lewis v. Casey, 518 U.S. 343, 354 (1996). With respect to other civil actions, inmates have the more minimal right to not literally be denied access through the erection of barriers to claims that have a reasonable basis in law or fact. Silva, 658 F.3d at 1102-03. In either case, the right to access is "ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court." Christopher v. Harbury, 536 U.S. 403, 415 (2002).

In his second amended complaint, plaintiff makes a number of allegations concerning the litigation of 1:06-cv-0836 AWI GBC, a case filed in the Fresno division of this court, including that he was not permitted by prison officials to send the court certain documents. First, the court notes that plaintiff ultimately stipulated to dismissal of that action with prejudice. In any case, plaintiff does not allege that he was denied the ability to communicate with the court to raise any issue he may have had with correctional officers denying him the ability to adequately pursue his claims in that action. After a review of the docket in1:06-cv-0836 AWI GBC, nothing suggests any claim asserted by plaintiff was lost because plaintiff could not access the court as the Constitution requires the he be permitted to do. For these reasons, plaintiff shall not include any claims regarding the litigation of in1:06-cv-0836 AWI GBC in his third amended complaint.

Further, plaintiff shall not include any claims regarding Ninth Circuit Case No. 12-71845 in his third amended complaint. Plaintiff alleges his ability to seek permission in the Ninth Circuit to file a successive habeas petition was hampered by the actions of certain defendants. Plaintiff fails to point to any facts indicating he is now denied the ability to seek permission to file a successive petition. The court notes that there is no statute of limitations applicable to seeking permission to file a successive petition, nor is there a limit as to how many times permission can be sought. Also, any suggestion by petitioner that he is entitled to monetary relief because of the time he has spent in prison as a result of the denial of his request for permission to file a successive petition is barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994) (prisoner cannot pursue civil claim which implies the invalidity if his conviction).

Finally, in his third amended complaint, plaintiff shall not include any claims concerning a case he wished to file against his trial attorney for malpractice (ECF No. 42 at 10-11) as those claims would also be barred by the Heck doctrine. See Coscia v. McKenna & Cuneo, 25 Cal.4th 1194, 1204 (2001).

With respect to some of the other legal issues arising in plaintiff's pleadings, he is informed as follows:

1. Prison officials generally cannot retaliate against inmates for exercising First Amendment rights. Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985). Because a prisoner's First Amendment rights are necessarily curtailed, however, a successful retaliation claim requires a finding that "the prison authorities' retaliatory action did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals." Id. at 532. The plaintiff bears the burden of pleading and proving the absence of legitimate correctional goals for the conduct of which he complains. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).

2. The Due Process Clause of the Fourteenth Amendment does not require that a prisoner grievance process be conducted in a particular way because plaintiff has no constitutional right to a prisoner grievance procedure. Ramirez v. Galazza, 334 F.3d 850, 860 (9th Cir. 2003).

3. As for any claim arising under California law, plaintiff must plead facts demonstrating or excusing compliance with the California Government Claims Act, Cal. Gov. Code § 900 et seq. See State v. Superior Court (Bode), 32 Cal.4th 1234, 1239 (Cal. 2004). It is not sufficient to simply indicate that the Act has been complied with as plaintiff has done in his second amended complaint. ECF No. 42 at 1. Plaintiff must indicate precisely how he complied with the Act with respect to each claim he brings under California law. For example, if plaintiff alleges Dr. Johnson was negligent for failing to provide adequate medical care for broken leg on March 30, 2015, plaintiff must identify the claim, then indicate exactly how he complied with the Government Claims Act with respect to that claim.

As plaintiff was informed when his original complaint was dismissed (ECF No. 11) plaintiff is again informed that the court cannot refer to a prior pleading in order to make plaintiff's third amended complaint complete. Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files his third amended complaint, prior pleadings no longer serve any function in the case.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's second amended complaint is dismissed;

2. Plaintiff is granted thirty days to file a third amended complaint. /////

3. The third amended complaint must bear the docket number assigned this case and must be labeled "Third Amended Complaint."

4. Failure to file a third amended complaint that substantially complies with all of the terms of this order will result in a recommendation that this action be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure.

5. No defendant need take any further action until receiving further direction from the court.

6. The Clerk of the Court shall send plaintiff a copy of the document filed by plaintiff on March 16, 2016 (ECF No. 46). Dated: April 3, 2017

/s/_________

CAROLYN K. DELANEY

UNITED STATES MAGISTRATE JUDGE 1
cole1753.scrn(1)