Opinion
No. CIV S-04-0575 GEB JFM P.
February 2, 2007
ORDER
Plaintiff is a state prisoner proceeding pro se. This action was commenced by plaintiff in state court and removed by defendants to this court pursuant to 28 U.S.C. § 1441. Since removal, plaintiff has filed an amended complaint, a second amended complaint, a third amended complaint and, most recently, a proposed fourth amended complaint. By order filed September 14, 2006, the parties were ordered to file briefs addressing whether some or all of plaintiff's claims are barred by the statute of limitations and whether some or all of plaintiff's claims should be dismissed without prejudice for failure to exhaust administrative remedies prior to suit.
On November 22, 2006, defendants filed their response. Defendants maintain that all of plaintiff's claims involving allegations of events that occurred on or after September 11, 2002, the date this case was initially filed in state court, should be dismissed because plaintiff could not have exhausted his administrative remedies as to those claims prior to the filing of suit as required by 42 U.S.C. § 1997e(a) (1996). Defendants contend this encompasses claims from ¶¶ 178-91, ¶¶ 218-52, ¶¶ 273-38; ¶¶ 339-66; ¶¶ 367-69; ¶¶ 370-73; ¶¶ 374-78; ¶¶ 379-83; ¶¶ 384-86; and ¶¶ 387-89 of plaintiff's fourth amended complaint.
Defendants further contend that all claims involving events that occurred more than three years prior to plaintiff's original complaint, filed September 11, 2002, are barred by the statute of limitations. Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Defendants argue that plaintiff's claims contained in ¶¶ 104-61, ¶¶ 255-72, ¶¶ 367-69, and ¶¶ 384-89, are barred by the statute of limitations because they occurred more than three years prior to September 11, 2002. Id.
Plaintiff has not substantively addressed the court's order of September 14, 2006. Rather, plaintiff continues to seek a court order requiring prison officials to allow him to maintain six feet of legal material in his administrative segregation cell, which this court denied on September 14, 2006. In addition, plaintiff has renewed his request for temporary restraining order. The court has denied plaintiff's prior requests, primarily on the grounds that the court has not yet found plaintiff has an amended complaint on file that states cognizable grounds for relief. (See Orders filed April 14, 2005, June 20, 2005, October 26, 2005, and January 12, 2006.)
In his January 9, 2007 motion, plaintiff contends he was deliberately assaulted by Officer T. Detlefsen and Sgt. M. Murray, two of the defendants named in the instant complaint, and argues that these defendants later retaliated against plaintiff because he told the ER-Nurse about the assault. Plaintiff states he filed a complaint against both defendants on August 27, 2006. (Id. at 3.) Plaintiff further states that his first level appeal regarding his request for legal materials was denied and he submitted it to the second level review on December 12, 2006. Thus, it appears plaintiff is in the midst of exhausting this claim through administrative channels. It is unlikely that plaintiff has obtained a Director's Level Decision on this claim by this date, but in any event, it is clear from this filing that plaintiff did not exhaust his administrative remedies prior to bringing the instant action which was originally filed on September 11, 2002. In addition, although plaintiff contends this deprivation of legal materials is risking his access to the courts, a review of the instant docket as well as other court filings reflects that plaintiff's ability to file documents with this court has not been impeded. Plaintiff has filed four documents with this court since this court's order of September 14, 2006. Accordingly, the court will deny plaintiff's motion without prejudice to its renewal once a valid complaint is on file.
A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
Moreover, the court notes that during the pendency of this action, plaintiff filed a new civil rights complaint against at least sixteen defendants at High Desert State Prison and CSP-SAC concerning incidents ranging in date from December 1999 to July 29, 2004. See CIV S-06-1050 LKK KJM P.
Finally, in plaintiff's January 9, 2007 motion, plaintiff asks the court to grant him an extension of time in which to respond to this court's September 14, 2006 order.
Before dealing with what happens next, the court must address the scope of this action. The court has the power to control its docket and the cases pending before it. Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 506 U.S. 915 (1992). A litigant proceeding in forma pauperis may suffer restricted access to the court where it is determined that he is overusing or abusing court resources in the pursuit of frivolous or nonfrivolous actions. DeLong v. Hennessey, 912 F.2d 1144 (9th Cir. 1990); see also Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989). As noted previously, over the course of four amended complaints, this action has been transformed from one claim, filed in state court, raised against seven defendants at one state prison, about an alleged improper deprivation of a radio, to an action against sixty-five named defendants and numerous other Doe defendants at four state prisons and the California Department of Corrections headquarters. Except in unusual circumstances, court actions are limited to one event or a series of events that transpire at one prison, unless there is a connection warranting joining issues from a different prison. This helps the parties focus the litigation and obtain discovery. It also serves judicial economy and efficiency in getting the matter set for trial. Here, because plaintiff opted to raise allegations concerning multiple offenses that occurred in multiple institutions, for a very broad range of time, this case is now pending in federal court for over three years. It is now pending almost five years from its initial filing in state court.
Plaintiff's fourth amended complaint is ninety-one pages long and names sixty-five individual defendants and numerous Doe defendants. (March 8, 2005 Fourth Amended Complaint [Docket No. 52].) The fourth amended complaint contains numerous allegations based on events that occurred in March 2004 and thereafter. As noted in this court's September 14, 2006 order, exhaustion of administrative remedies prior to suit is required. Booth v. Churner, 532 U.S. 731, 741 (2001); Woodford v. Ngo, ___ U.S. ___, 126 S.Ct. 2378 (2006). Moreover, many of plaintiff's claims are based on allegations of events that occurred more than three years before this action was removed to this court. It is very likely that most, if not all, of those claims would be barred by the applicable statute of limitations. Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999).
At bottom, however, plaintiff's fourth amended complaint does not contain a short and plain statement of claims as required by Fed.R.Civ.P. 8. See McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996); see also September 14, 2006 Order.) Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support plaintiff's claim. Id. Because plaintiff has failed to comply with the requirements of Fed.R.Civ.P. 8(a)(2), the fourth amended complaint must be dismissed. The court will, however, grant leave to file a fifth amended complaint.
"Plaintiff's fourth amended complaint suffers from many of the same problems as the pleading dismissed in McHenry: there is much "'narrative rambling'" yet a marked lack of "notice of what legal claims are asserted against which defendants." Id. at 1176. As in McHenry, "[p]rolix, confusing complaints such as the ones plaintiffs filed in this case impose unfair burdens on litigants and judges." Id. at 1179." (September 14, 2006 Order at 5.)
If plaintiff chooses to file a fifth amended complaint, plaintiff must demonstrate how the conditions complained of have resulted in a deprivation of plaintiff's constitutional rights.See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the fifth amended complaint must allege in specific terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant's actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
Plaintiff should carefully consider claims arising from to events that took place three years prior to September 11, 2002 (unless there is a reasonable basis for tolling the statute of limitations), as well as any claim that had not been exhausted through administrative remedies by the filing date of the complaint herein, September 11, 2002. Moreover, plaintiff should not include in this fifth amended complaint any claim presently pending in CIV S-06-1050 LKK KJM P. Plaintiff is not permitted to press the same claims in two different cases.
In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff's fifth amended complaint complete. Local Rule 15-220 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 a fifth amended complaint, the original pleading no longer serves any function in the case. Therefore, in a fifth amended complaint, as in an original complaint, each claim and the involvement of each defendant must be sufficiently alleged.
Finally, it appears plaintiff may be having difficulty accessing his legal materials. Good cause appearing, counsel for defendants will be directed to inform the court as to the status of plaintiff's access to his legal materials. Defendants are cautioned that failure to comply with this order may result in the imposition of sanctions. The court is granting plaintiff more time to file a fifth amended complaint so that he may have time to review his legal materials and submit a cogent fifth amended complaint.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's fourth amended complaint is dismissed.
2. Plaintiff is granted sixty days from the date of service of this order to file a fifth amended complaint that complies with this order, the requirements of the Civil Rights Act, the Federal Rules of Civil Procedure, and the Local Rules of Practice; the fifth amended complaint must bear the docket number assigned this case and must be labeled "Fifth Amended Complaint"; plaintiff must file an original and two copies of the fifth amended complaint; failure to file a fifth amended complaint in accordance with this order will result in a recommendation that this action be dismissed.
3. Plaintiff's September 26, 2006 (Docket No. 63) and January 9, 2007 motions are denied without prejudice (Docket Nos. 68, 69).
4. Within fifteen days, counsel for defendants shall inform the court as to the status of plaintiff's access to his legal materials.