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United States District Court

Eastern District of California 

Dennis Martel,

Plaintiff, No. Civ. S 04-0014 DFL PAN P

vs. Order

California Department

of Corrections, et al.,

Defendants.

-oOoPlaintiff is a state prisoner without counsel prosecuting a

civil rights action. He seeks leave to proceed in forma

pauperis. This proceeding was referred to this court by Local

Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1). 

Plaintiff’s declaration makes the showing required by 28

U.S.C. § 1915(a)(1) and (2).

Pursuant to 28 U.S.C. § 1915(b)(1), plaintiff must pay the

$150 filing fee required by 28 U.S.C. § 1914(a) (2000). 

Plaintiff must make monthly payments of 20 percent of the

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preceding month’s income credited to his trust fund account. 28

U.S.C. § 1915(b)(2). The agency having custody of plaintiff

shall forward payments from plaintiff’s account to the clerk of

the court each time the amount in the account exceeds $10 until

the filing fee is paid. 

I have reviewed plaintiff’s complaint pursuant to 28 U.S.C.

§ 1915A and find it states a cognizable claim against defendants

R. L. Andreasen, Tom Donahue, John J. Dan, and J. W. Moore. 

The complaint states no cognizable claim against defendants

Cal A. Terhune, Tom Carey or the California Department of

Corrections. Plaintiff’s claims against these defendants are

dismissed.

Plaintiff may proceed forthwith to serve defendants R. L.

Andreasen, Tom Donahue, John J. Dan, and J. W. Moore and pursue

his claims against only those defendants or he may delay serving

any defendant and attempt to state a cognizable claim against

defendants Cal A. Terhune, Tom Carey and the California

Department of Corrections.

If plaintiff elects to attempt to amend his complaint to

state a cognizable claim against defendants Cal A. Terhune, Tom

Carey and the California Department of Corrections, he has 45

days so to do. He is not obligated to amend his complaint and if

he does it unavoidably will delay this litigation.

If plaintiff elects to proceed forthwith against defendants

R. L. Andreasen, Tom Donahue, John J. Dan, and J. W. Moore,

against whom he has stated a cognizable claim for relief, then 

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within 15 days he must return materials for service of process

enclosed herewith. In this event the court will construe

plaintiff’s election as consent to dismissal of all claims

against defendants Cal A. Terhune, Tom Carey and the California

Department of Corrections without prejudice. 

Any amended complaint must show the federal court has

jurisdiction, the action is brought in the right place and

plaintiff is entitled to relief if plaintiff’s allegations are

true. It must contain a request for particular relief. 

Plaintiff must identify as a defendant only persons who

personally participated in a substantial way in depriving

plaintiff of a federal constitutional right. Johnson v. Duffy,

588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to

the deprivation of a constitutional right if he does an act,

participates in another’s act or omits to perform an act he is

legally required to do that causes the alleged deprivation). If

plaintiff contends he was the victim of a conspiracy, he must

identify the participants and allege their agreement to deprive

him of a specific federal constitutional right. 

In an amended complaint, the allegations must be set forth

in numbered paragraphs. Fed. R. Civ. P. 10(b). Plaintiff may

join multiple claims if they are all against a single defendant. 

Fed. R. Civ. P. 18(a). If plaintiff has more than one claim

based upon separate transactions or occurrences, the claims must

be set forth in separate paragraphs. Fed. R. Civ. P. 10(b).

The federal rules contemplate brevity. See Galbraith v.

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County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002)

(noting that “nearly all of the circuits have now disapproved any

heightened pleading standard in cases other than those governed

by Rule 9(b)”); Fed. R. Civ. P. 84; cf. Rule 9(b) (setting forth

rare exceptions to simplified pleading).

Plaintiff’s claims must be set forth in short and plain

terms, simply, concisely and directly. See Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting

point of a simplified pleading system, which was adopted to focus

litigation on the merits of a claim.”); Fed. R. Civ. P. 8. 

Plaintiff must eliminate from plaintiff’s pleading all

preambles, introductions, argument, speeches, explanations,

stories, griping, vouching, evidence, attempts to negate possible

defenses, summaries, and the like. McHenry v. Renne, 84 F.3d

1172 (9th Cir. 1996) (affirming dismissal of § 1983 complaint for

violation of Rule 8 after warning); see Crawford-El v. Britton,

523 U.S. 574, 597 (1998) (reiterating that “firm application of

the Federal Rules of Civil Procedure is fully warranted” in

prisoner cases). It is sufficient, for example, for a prisoner

who claims the conditions of his imprisonment violate the Eighth

Amendment prohibition against cruel and unusual punishment to

allege that an identified state actor used force against

plaintiff maliciously and sadistically for the very purpose of

causing harm. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). 

(On the other hand, prison officers imposing discipline act in

haste, under pressure and without the luxury of a second chance;

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therefore, no Eighth Amendment violation occurs where force is

applied to maintain or restore discipline but not maliciously and

sadistically.) 

The court (and defendant) should be able to read and

understand plaintiff’s pleading within minutes. McHenry, supra. 

A long, rambling pleading including many defendants with

unexplained, tenuous or implausible connection to the alleged

constitutional injury, or joining a series of unrelated claims

against many defendants, very likely will result in delaying the

review required by 28 U.S.C. § 1915 and an order dismissing

plaintiff’s action pursuant to Fed. R. Civ. P. 41 for violation

of these instructions. 

If plaintiff’s pleading is deficient on account of an

omission or technical defect, the court will not dismiss it

without first identifying the problem and giving plaintiff an

opportunity to cure it. Noll v. Carlson, 809 F.2d 1446 (9th Cir.

1986). Plaintiff’s pleading will be construed “liberally” to

determine if plaintiff has a claim but it will be dismissed if

plaintiff violates the federal rules, once explained, or the

court’s plain orders.

An amended complaint must be complete in itself without

reference to any prior pleading. Local Rule 15-220; see Loux v.

Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an

amended complaint, the original pleading is superseded.

Plaintiff is admonished that by signing a first amended

complaint he certifies he has made reasonable inquiry and has

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evidentiary support for his allegations and that for violation of

this rule the court may impose sanctions sufficient to deter

repetition by plaintiff or others. Fed. R. Civ. P. 11. Prison

rules require plaintiff to obey all laws, including this one, and

plaintiff may be punished by prison authorities for violation of

the court’s rules and orders. See 15 Cal. Admin. Code § 3005.

Title 42 of the United States Code § 1997e(a) provides that

a prisoner may bring no § 1983 action until he has exhausted such

administrative remedies as are available to him. The requirement

is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001). A

California prisoner or parolee may appeal “any departmental

decision, action, condition, or policy which they can demonstrate

as having an adverse effect upon their welfare.” 15 California

Administrative Code § 3084.1, et seq. An appeal must be

presented on a CDC form 602 that asks simply that the prisoner

“describe the problem” and “action requested.” Therefore, this

court ordinarily will review only claims against prison officials

within the scope of the problem reported in a CDC form 602 or an

interview or claims that were or should have been uncovered in

the review promised by the department. Plaintiff further is

admonished that by signing an amended complaint he certifies his

claims are warranted by existing law, including the law that he

exhaust administrative remedies, and that for violation of this

rule plaintiff risks dismissal of his entire action, including

his claims against defendants R. L. Andreasen, Tom Donahue, John

J. Dan, and J. W. Moore. 

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Accordingly, the court hereby orders that:

1. Plaintiff’s request to proceed in forma pauperis is

granted. 

2. Plaintiff is obligated to pay the statutory filing fee

of $150 for this action. The fee shall be collected and paid in

accordance with the notice to the Director of the California

Department of Corrections filed concurrently herewith. 

3. Claims against defendants Cal A. Terhune, Tom Carey and

the Department of Corrections are dismissed with leave to amend. 

Within 45 days of service of this order, plaintiff may amend his

complaint to attempt to state cognizable claims against these

defendants. Plaintiff is not obliged to amend his complaint and

if he does it inevitably will delay this litigation.

4. The pleading states cognizable claims against defendants

R. L. Andreasen, Tom Donahue, John J. Dan, and J. W. Moore. With

this order the Clerk of the Court shall provide to plaintiff a

blank summons, a copy of the pleading filed January 5, 2004, four

USM-285 forms and instructions for service of process on

defendants R. L. Andreasen, Tom Donahue, John J. Dan, and J. W.

Moore. Within 15 days of service of this order plaintiff may

return the attached Notice of Submission of Documents with the

completed summons, the completed USM-285 forms, and five copies

of the January 5, 2004, complaint. The court will transmit them 

to the United States Marshal for service of process pursuant to

Fed. R. Civ. P. 4. Defendants R. L. Andreasen, Tom Donahue, John

J. Dan, and J. W. Moore will be required to respond to

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plaintiff’s allegations within the deadlines stated in Fed. R.

Civ. P. 12(a)(1). In this event, the court will construe

plaintiff’s election to proceed forthwith as consent to an order

dismissing his defective claims against defendants Cal A.

Terhune, Tom Carey and the California Department of Corrections

without prejudice.

Dated: April 26, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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United States District Court

Eastern District of California 

Dennis Martel,

Plaintiff, No. Civ. S 04-0014 DFL PAN P

vs. Notice of Submission of Documents

California Department

of Corrections, et al.,

Defendants.

-oOoPlaintiff hereby submits the following documents in

compliance with the court's order filed :

 1 completed summons form

 4 completed forms USM-285 

 5 copies of the January 5, 2004 

 Complaint

Dated: 

 _________________________________

Plaintiff

Case 2:04-cv-00014-ALA Document 6 Filed 04/28/05 Page 9 of 9