Opinion
Case No.: 3:20-cv-01020 CAB-WVG
12-11-2020
EDWARD MAURICE CUMMINGS, CDCR #AF-0209, Plaintiff, v. RALPH DIAZ, Sec. of the CDCR; DANIEL PARAMO, Warden; C. COVEL, Assoc. Warden; M. KEENER, Sergeant; BONAFICIO, Corrections Officer, DOES 1-100, Defendants.
ORDER DISMISSING FIRST AMENDED COMPLAINT [ECF No. 5] WITHOUT LEAVE TO AMEND FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) & 28 U.S.C. § 1915A(b)
Edward Cummings ("Plaintiff"), currently incarcerated at Mule Creek State Prison ("MCSP") located in Ione, California, and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1.
Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a), nor did he file a Motion to Proceed In Forma Pauperis ("IFP") when he filed his Complaint, and the Court dismissed the action on June 9, 2020 for that reason. ECF No. 2. Plaintiff was given forty-five days within which to either pay the civil filing fee or move to proceed IFP. Id. On July 6, 2020, Plaintiff filed an IFP motion pursuant to 28 U.S.C. § 1915(a). ECF No. 3. The Court granted the motion on August 13, 2020, and dismissed the case for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A(b). ECF No. 4. Plaintiff was given sixty days within which to file an amended complaint. Id. On October 19, 2020, Plaintiff filed a First Amended Complaint (FAC). ECF No. 5.
I. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
A. Standard of Review
As with his original Complaint, because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). "The purpose of [screening] is 'to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'" Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).
"The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim." Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A "incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)"). Rule 12(b)(6) requires a complaint "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. "Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. The "mere possibility of misconduct" or "unadorned, the defendant-unlawfully-harmed me accusation[s]" fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
B. Plaintiff's Factual Allegations
In his FAC, Plaintiff alleges that Defendants "personally planned, plotted together with intent to deprive [P]laintiff of his personal property," and that "Defendants . . . personally planned not to do their duties as supervisors even while present and were at all times aware of said actions of each other and the manner in which each others' conduct was carried out." FAC at 5. He further alleges that "[t]he Warden did willfully and unlawfully tolerated, condoned and ratified illegal and/or unconstitutional erroneous, outrageous, arbitrary, malicious, vindictive, capricious and oppressive process of subjections to unwarranted seizure of [P]laintiff's personal property . . . ." Id.
"Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights." Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations omitted). "To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws of the United States, and (2) that the deprivation was committed by a person acting under color of state law." Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
D. Loss of Property Claims
As the Court noted in its August 13, 2020 Order, when a prisoner alleges he was deprived of a property interest caused by the unauthorized acts of state officials, either negligent or intentional, he cannot state a constitutional claim if the state provides an adequate post-deprivation remedy. See Zinermon v. Burch, 494 U.S. 113, 129-32 (1990); Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that the unauthorized negligent or intentional deprivation of property does not violate due process if a meaningful post-deprivation remedy is available). The California Tort Claims Act ("CTCA") provides an adequate post-deprivation state remedy for the random and unauthorized taking of property. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (stating that "California law provides an adequate post-deprivation remedy for any property deprivations.") Thus, to the extent Plaintiff challenges the unauthorized or negligent taking of his personal property in contravention of a statute or regulation authorizing it, the CTCA provides him with an adequate state post-deprivation remedy, and his claims challenging the loss of his property is not cognizable in a § 1983 action.
To the extent Plaintiff is alleging a conspiracy to violate his constitutional rights by claiming that Defendants "planned, plotted together with intent to deprive [P]laintiff of his personal property," FAC at 5, he fails to state a claim as well. "To state a claim for a conspiracy to violate one's constitutional rights under section 1983, the plaintiff must state specific facts to support the existence of the claimed conspiracy." Burns v. Cty. of King, 883 F.2d 819, 821 (9th Cir. 1989). "In addition, a conspiracy to violate constitutional rights must be predicated on a viable underlying constitutional claim . . . [and] requires 'an actual deprivation of constitutional rights.'" Steel v. City of San Diego, 726 F.Supp.2d 1172, 1179 (S.D. Cal. 2010), citing Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005) and Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006). As the Court has concluded, Plaintiff does not state a "viable underlying constitutional claim," nor "an actual deprivation of constitutional rights."
E. Individual Causation
Further, Plaintiff has not explained how each of the named Defendants' actions violated his constitutional rights. "A plaintiff must allege facts, not simply conclusions, t[o] show that [each defendant] was personally involved in the deprivation of his civil rights." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Estate of Brooks ex rel. Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (stating that "[c]ausation is, of course, a required element of a § 1983 claim.").
Plaintiff names Ralph Diaz, Secretary of the California Department of Corrections and Rehabilitation ("CDCR"), Daniel Paramo, Warden of RJD, C. Covel, Associate Warden at RJD, M. Keener, a sergeant at RJD, Bonaficio, a corrections officer at RJD and Does 1-100. Compl. at 1-2, 7-9. He claims that "Defendants . . . personally planned not to do their duties as supervisors," and that "[t]he Warden did willfully and unlawfully tolerated, condoned and ratified illegal and/or unconstitutional erroneous, outrageous, arbitrary, malicious, vindictive, capricious and oppressive process of subjections to unwarranted seizure of [P]laintiff's personal property . . . ." FAC at 5. As the Court explained to Plaintiff in its August 13, 2020 Order, there is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v. Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). "Because vicarious liability is inapplicable to . . . § 1983 suits, [Plaintiff] must plead that each government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 at 676; see also Jones v. Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must "allege with at least me degree of particularity overt acts which defendants engaged in" in order to state a claim).
Moreover, supervisory officials may only be held liable under § 1983 if Plaintiff alleges their "personal involvement in the constitutional deprivation, or . . . a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Keates v. Koile, 883 F.3d 1228, 1242-43 (9th Cir. 2018); Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). Plaintiff's Complaint offers no factual detail from which the Court might reasonably infer a plausible constitutional claim as to Secretary Diaz, Warden Paramo, Associate Warden Covel or Sergeant Keener because he does not allege that any of these Defendants personally committed any of the acts he alleges. Nor does he allege that Defendants Bonaficio and Does 1-100 "through [their] own individual actions, . . . violated the Constitution." Iqbal, 556 at 676; Jones, 733 F.2d at 649.
Federal Rule of Civil Procedure 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation," and in order "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Iqbal, 662 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 570). Plaintiff's Complaint does not contain sufficient factual allegations that Defendants personally and through their own actions violated Plaintiff's constitutional rights.
F. Doe Pleading & Individual Liability
The Federal Rules of Civil Procedure do not authorize or prohibit the use of fictitious parties, but Rule 10 does require a plaintiff to include the names of all parties in his complaint. See Fed. R. Civ. P. 10(a). Courts especially disfavor Doe pleading in an IFP case because in the event the plaintiff's complaint alleges a plausible claim for relief, it is effectively impossible for the United States Marshal or deputy marshal to fulfill his or her duty to serve an unnamed defendant. See Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d); Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (in order to properly effect service under Rule 4 in an IFP case, the plaintiff is required to "furnish the information necessary to identify the defendant."); Finefeuiaki v. Maui Cmty. Corr. Ctr. Staff & Affiliates, 2018 WL 3580764, at *6 (D. Haw. July 25, 2018) (noting that "[a]s a practical matter, the United States Marshal cannot serve a summons and complaint on an anonymous defendant.").
"A plaintiff may refer to unknown defendants as Defendant John Doe 1, John Doe 2, John Doe 3, and so on, but he must allege specific facts showing how each particular doe defendant violated his rights." Cuda v. Employees/Contractors/Agents at or OCCC, 2019 WL 2062945, at *3-4 (D. Haw. May 9, 2019). A plaintiff may also seek discovery to obtain the names of the Does and later amend his pleading in order to substitute the true names of those defendants, unless it is clear that discovery will not uncover their identities, or that his complaint is subject to dismissal on other grounds. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (emphasis added) (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).
Plaintiff continues to name "Does 1-100" as Defendants, see FAC at 5, but he makes no specific allegations against any individual Doe in relation to the alleged constitutional violations which form the basis of his suit. Simply put, Plaintiff fails to link any particular constitutional violation to any specific, individual state actor, and he fails to even minimally explain how each individual Doe party he seeks to sue personally caused a violation of his constitutional rights. See Compl. at 8; Iqbal, 556 U.S. at 677. As noted above, "[a] plaintiff must allege facts, not simply conclusions, t[o] show that [each defendant] was personally involved in the deprivation of his civil rights." Barren, 152 F.3d at 1194 (9th Cir. 1998); see also Estate of Brooks ex rel. Brooks, 197 F.3d at 1248. As it stands, Plaintiff's Complaint fails to "plead[] factual content that [would] allow[] the court to draw the reasonable inference that [any] defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
III. Conclusion and Order
For the reasons explained, the Court DISMISSES Plaintiff's Amended Complaint [ECF No. 5] for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Because amendment would be futile, the dismissal is without leave to amend.
IT IS SO ORDERED. Dated: December 11, 2020
/s/_________
Hon. Cathy Ann Bencivengo
United States District Judge