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Nickols v. Mansfield

United States District Court, Ninth Circuit

January 28, 2014



KAREN L. STROMBOM, Magistrate Judge.

Pro se Plaintiff Joseph R. Nickols, who is currently incarcerated at the Lewis County Jail, has filed a proposed civil rights complaint. Dkt. 7. Mr. Nickols has been granted leave to proceed in forma pauperis. Dkt. 6. The Court has determined that it will not direct service of the complaint because it is deficient. However, Mr. Nickols will be given an opportunity to file an amended complaint.


Under the Prison Litigation Reform Act of 1995, the Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious, " that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b)(1), (2) and 1915(e)(2); See Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998).

A complaint or portion thereof, will be dismissed for failure to state a claim upon which relief may be granted if it appears the "[f]actual allegations... [fail to] raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true." See Bell Atlantic, Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007) (citations omitted). Although complaints are to be liberally construed in a plaintiff's favor, conclusory allegations of the law, unsupported conclusions, and unwarranted inferences need not be accepted as true. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Neither can the court supply essential facts that an inmate has failed to plead. Pena, 976 F.2d at 471 (quoting Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982)).

Mr. Nickols purports to bring this action on behalf of himself and several other inmates at the Lewis County Jail (Forrest Amos, Gadalupe Solis Diaz, Dominick Perry, Gordon Harper, Cade Dausener, and Panther Risling). Dkt. 7. None of these other inmates paid a filing fee or submitted an application to proceed in forma pauperis. Mr. Nickols names fourteen employees and two unnamed mail officers of the Lewis County Jail. Mr. Nickols claims that his constitutional rights were or are being violated by various policies of the Lewis County Jail, including: (1) limitation of all mail to postcards; (2) rejection of incoming mail without notice and due process; (3) censorship of incoming and outcoming mail; (4) charges to inmates of $.50 per minute for visitation; (5) inadequate due process relating to minor infractions; (6) limitation of clean clothes to once per week; (7) denial of sheets and pillow; and (8) lack of adequate meals with sufficient calories. Dkt. 7, pp. 13-15.

Based on the foregoing allegations, Mr. Nickols has failed to state a viable claim under 42 U.S.C. § 1983. Mr. Nickols purports to bring this action on behalf of himself and six other inmates. However, pro se prisoners have neither the authority to represent anyone but themselves nor the competence to protect the interests of other prisoners as required by Fed.R.Civ.P. 23. See Russell v. United States, 308 F.2d 98 (9th Cir.1962); Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.1975). Because Mr. Nickols proceeds pro se, he cannot represent a class.

Each individually named plaintiff is required to file his own civil action asserting his individual claims. Separate cases are proper because of the need for each individual plaintiff to represent himself with regard to the claims alleged in this case, the need for each plaintiff to sign the pleadings, and the likelihood that the factual grounds for each inmate's claims may differ.

Additionally, even when prisoners file a complaint jointly, each must pay the full filing fee. See Bouribone v. Berge, 391 F.3d 852, 854-56 (7th Cir. 2004) and Hubbard v. Haley, 262 F.3d 1194, 1196 (11th Cir. 2001). Pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), even where a prisoner is granted leave to proceed in forma pauperis, he must pay the full filing fee. See 28 U.S.C. § 1915(b); 1914(a). Moreover, while a prisoner litigating on his own behalf takes the risk that one or more of his claims may be deemed sanctionable under Fed.R.Civ.P. 11, or may count toward the limit of three weak in forma pauperis claims allowed by Section 1915(b), prisoners litigating jointly may be at risk for all claims in the complaint, whether or not the claims concern them personally. There is also no guarantee that all of the plaintiffs will remain at the same prison or in the same area of a prison while they are litigating together. For all these reasons, each of the plaintiffs must file separate complaints under separate case numbers. Each of the plaintiffs must also pay the full filing fee of $400.00 or submit an application to proceed in forma pauperis when they file their complaint.

To pursue claims on his own behalf in this lawsuit, Mr. Nickols must file an amended complaint and must plead specific conduct that has been committed by a person or persons acting under color of state law that deprived him of a right, privilege or immunity secured by the Constitution. He must plead specific facts showing how and when and by whom he was harmed by that conduct. Mr. Nickols purports to sue sixteen individual defendants for the various policies and procedures of the Lewis County Jail. However, he fails to describe how and when and by whom he was harmed by any of these policies and/or procedures. He has failed to include any factual allegations in his complaint describing the conduct of any of the defendants named in this lawsuit. Mr. Nickols must clarify whether he has any basis for pursuing a claim under § 1983. In the amended complaint, he must write out short, plain statements telling the Court: (1) the constitutional right he believes was violated; (2) name of the person who violated the right; (3) exactly what that individual did or failed to do; (4) how the action or inaction of that person is connected to the violation of Mr. Nickols' constitutional rights; and (5) what specific injury Mr. Nickols suffered because of that person's conduct and the relief he seeks from this Court.

If the person named as a defendant is a supervisory official, Mr. Nickols must either state that the defendant personally participated in the constitutional deprivation (and tell the Court the five things listed above), or he must state, if he can do so in good faith, that the defendant was aware of the similar widespread abuses, but with deliberate indifference to Mr. Nickols constitutional rights, failed to take action to prevent further harm to him and also state facts to support this claim. See Monell v. New York City Department of Social Services, 436 U.S. 658, 691 (1978).

Mr. Nickols must repeat this process for each person he names as a defendant, including any "John Doe" and "Jane Doe" defendants. If Mr. Nicols fails to affirmatively link the conduct of each named defendant with the specific injury suffered by him, the claim against that defendant will be dismissed for failure to state a claim. Conclusory allegations that a defendant or a group of defendants have violated a constitutional right are not acceptable and will be dismissed. To avoid dismissal for failure to state a claim, Mr. Nickols must include more than "naked assertions, " "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007).

As noted above, Mr. Nickols may file an amended complaint to cure the deficiencies noted herein. He shall present his complaint on the form provided by the Court. The amended complaint must be legibly rewritten or retyped in its entirety, it should be an original and not a copy, it should contain the same case number, and it may not incorporate any part of the original complaint by reference. An amended complaint operates as a complete substitute for (rather than a mere supplement to) the present complaint. Mr. Nickols should complete all sections of the Court's form. He may attach continuation pages as needed but may not attach a separate document that purports to be his amended complaint. The Court will screen the amended complaint to determine whether it contains factual allegations linking each defendant to the alleged violations of Mr. Nickols' rights. The Court will not authorize service of the amended complaint on any defendant who is not specifically linked to the violation of his rights.

If Mr. Nickols decides to file an amended civil rights complaint in this action, he is cautioned that if the amended complaint is not timely filed or if he fails to adequately address the issues raised herein on or before February 28, 2014, the Court will recommend dismissal of this action as frivolous pursuant to 28 U.S.C. § 1915 and the dismissal will count as a "strike" under 28 U.S.C. § 1915(g). Pursuant to 28 U.S.C. § 1915(g), enacted April 26, 1996, a prisoner who brings three or more civil actions or appeals which are dismissed on grounds they are legally frivolous, malicious, or fail to state a claim, will be ...

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