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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DAVID T. CHUBBUCK,

Plaintiff, No. CIV S-04-1748 MCE DAD P

vs.

THE CDC: HIGH DESERT STATE

PRISON, et al.,

Defendants. ORDER

 /

Plaintiff, a state prisoner proceeding pro se, has filed a complaint seeking relief

under 42 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28

U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance

with Local Rule 72-302 and 28 U.S.C. § 636(b)(1).

Pursuant to the court’s initial order in this action, plaintiff filed a new in forma

pauperis application on a proper form. The new application makes the showing required by 28

U.S.C. § 1915(a). Plaintiff’s request for leave to proceed in forma pauperis will be granted.

Plaintiff is required to pay the statutory filing fee of $150.00 for this action. See

28 U.S.C. §§ 1914(a) (prior to amendments effective in 2005) and 1915(b)(1). An initial partial

filing fee of $18.11 will be assessed by this order. See 28 U.S.C. § 1915(b)(1). By separate

order, the court will direct the appropriate agency to collect the initial partial filing fee from

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plaintiff’s trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be

obligated for monthly payments of twenty percent of the preceding month’s income credited to

his prison trust account. These payments will be forwarded by the appropriate agency to the

Clerk of the Court each time the amount in plaintiff’s account exceeds $10.00, until the filing fee

is paid in full. See 28 U.S.C. § 1915(b)(2).

The court is required to screen complaints brought by prisoners seeking relief

against a governmental entity or an officer or employee of a governmental entity. See 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,” fail to state a claim upon which relief may be

granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

§ 1915A(b)(1) and (2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 

Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

Cir. 1989); Franklin, 745 F.2d at 1227.

A complaint may be dismissed for failure to state a claim upon which relief may

be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the

claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73

(1984); Palmer v. Roosevelt Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In

reviewing a complaint under this standard, the court accepts as true the allegations of the

complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The court

also construes the pleading in the light most favorable to the plaintiff and resolves all doubts in

the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides as follows:

Every person who, under color of [state law] . . . subjects, or causes

to be subjected, any citizen of the United States . . . to the

deprivation of any rights, privileges, or immunities secured by the

Constitution . . . shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for redress. 

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

(1976).

“A person ‘subjects’ another to the deprivation of a constitutional right, within the

meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or

omits to perform an act which he is legally required to do that causes the deprivation of which

complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Supervisory

personnel are generally not liable under § 1983 for the actions of their employees under a theory

of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the

causal link between him and the claimed constitutional violation must be specifically alleged. 

See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441

(9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official

personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d

266, 268 (9th Cir. 1982).

Under the Federal Rules of Civil Procedure, a complaint must contain “a short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). Each allegation of the pleading must be “simple, concise, and direct.” Fed. R. Civ. P.

8(e)(1). Although the Federal Rules adopt a flexible pleading policy, a complaint must provide

each defendant with fair notice of the claims alleged against him or her and must contain factual

allegations that state the elements of each claim plainly and succinctly. Jones v. Community

Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).

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In the present case, plaintiff has submitted a voluminous pleading in multiple

parts. The first part of plaintiff’s pleading is a three-page form complaint that contains virtually

no information. The caption on the first page identifies the defendants as “THE CDC: HIGH

DESERT STATE PRISON et al.” In the section of the form in which the plaintiff is required to

identify each defendant by name, official position, and place of employment, plaintiff identifies

the first defendant as “THE CDC et al.” and the remaining defendants as “HIGH DESERT

STATE PRISON et al.” In the sections of the complaint intended for a short and plain statement

of claim and a brief statement of relief sought, plaintiff has entered “SEE ATTACHED

COMPLAINT.” The document filed by the Clerk of the Court as plaintiff’s complaint has no

attachment.

Along with the form complaint, plaintiff submitted a letter stating that he has “a

complaint that is coming to you in a box, weighing roughly 23 lbs.” The Clerk of the Court

received and filed a voluminous document, approximately four inches thick, with a cover page

titled “Intentional Impediment of Exhaustion of Administrative Remedies” and subtitled

“Supplement Complaint Retaliation.” The cover page for this document is followed by six pages

that seem to constitute plaintiff’s statement of claim and request for relief. In these six pages,

plaintiff asserts that his complaint involves intentional impediment of exhaustion by the appeals

coordinator at California Medical Facility (“CMF), where plaintiff was confined when he filed

this action. Plaintiff claims “due process violations, which further led to retaliati[o]n resting

upon Eighth Amendment claims.” Plaintiff identifies M. Cry as the sole defendant. Citing the

First and Fourteenth Amendments, plaintiff alleges that defendant Cry intentionally violated

plaintiff’s right of access to the courts.

In support of his claims against defendant Cry, plaintiff describes an inmate

appeal he submitted on April 5, 2004, raising medical issues as well as misconduct by defendant

Cry. Plaintiff alleges that during an interview with defendant Cry on February 6, 2004, regarding

a previously filed inmate appeal, he mentioned the new grievance he was filing against defendant

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Cry, whereupon the defendant “verbally threatened and assaulted” plaintiff and told him to leave

the office. Plaintiff alleges that defendant Cry did not respond to his appeal and “rendered this

appeal ‘unavailable’ by time barring plaintiff from this claim.” Plaintiff contends that defendant

Cry violated federal and state rights by preventing plaintiff from exhausting his claims, as

required by the PLRA. Plaintiff claims that defendant Cry’s actions show that there is a

departmental practice, policy, and custom of shielding prison officials. Plaintiff also contends

that his allegations establish retaliation. Plaintiff concludes that defendant Cry should be held

accountable because, as a result of defendant Cry’s actions, plaintiff’s state tort claim was

denied. Plaintiff seeks unidentified judicial relief.

Further review of plaintiff’s voluminous submission reveals that plaintiff has

additional claims against other defendants. The six pages described in the preceding paragraphs

are followed by yet another cover page, this one titled “Complaint,” followed by a topical index

containing 27 entries, one of which is also “Complaint.” No page numbers are included in the

index, and the topics listed in the index seem to be unrelated to the materials that follow. Among

those materials, however, is a 45-page document titled “Opening Brief.” In this brief, plaintiff

asserts that “this action involves the High Desert State Prison Officials, acting in their official

capacity, intentionally denying plaintiff medical emergency treatment.”

In support of his claims against High Desert defendants, plaintiff lists fifteen

defendants, approximately half of whom are medical staff. Plaintiff alleges, in part, as follows:

he had a cerebrovascular accident, or stroke, on July 13, 2000, at High Desert and was admitted

to the infirmary; from July 13, 2000, to August 3, 2000, the defendants, both medical and

correctional, subjected him to brutal neglect of his serious medical condition because Dr.

Sandham believed plaintiff was malingering; staff left plaintiff to defecate and urinate on

himself, placed his food trays outside his reach and told him he had to get up from his bed to get

them or starve, turned on the light in his room at all hours and told him to get up and turn it off if

he wanted to sleep, and taunted and made fun of him for smelling bad, causing him to suffer both

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physical and psychological trauma; plaintiff was taken to a Lassen County hospital for an MRI

on July 21, 2000, after another inmate called an attorney for plaintiff and the attorney threatened

legal action if plaintiff was not taken to a facility where he could be given an MRI; High Desert

staff received confirmation on July 31, 2000, that plaintiff had suffered a cerebrovascular

accident; on August 3, 2000, the chief medical officers at High Desert and CMF agreed to

plaintiff’s immediate transfer to the medical facility due to the seriousness of his medical need. 

Plaintiff seeks compensatory and punitive damages.

It appears that plaintiff’s claims against defendant Cry at CMF arose from

plaintiff’s attempt in 2004 to exhaust administrative remedies on the events that occurred at High

Desert in 2000. Plaintiff has not alleged that he attempted to pursue the claims against High

Desert defendants in any court and was precluded from doing so due to failure to exhaust

available administrative remedies prior to bringing the action. Although plaintiff has alleged that

his state tort claim was denied, his exhibits show that consideration of his tort claim was deferred

because plaintiff had not yet attempted to exhaust administrative remedies. Upon receipt of

plaintiff’s state tort claim dated February 2, 2004, the Board informed plaintiff of the exhaustion

requirement and indicated that his tort claim would be processed after he completed the inmate

appeal process and provided a copy of the final administrative decision on his appeal. Plaintiff’s

exhibits show that he submitted his inmate appeal on February 3, 2004, the day after he

submitted his state tort claim, and that defendant Cry rejected the inmate appeal on February 4,

2004, because the time for submitting an appeal regarding medical services in 2000 had expired. 

The court is unable to find any exhibit showing that plaintiff took further steps to exhaust his

administrative remedies or pursue his state tort claim.

While the right of access to the courts is well established, an inmate who alleges

interference with his right of access to the courts must also allege actual injury. Lewis v. Casey,

518 U.S. 343, 351 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977); Vandelft v. Moses, 31

F.3d 794, 796 (9th Cir. 1994). “Actual injury” means a “specific instance in which an inmate

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 Plaintiff may present his arguments concerning exhaustion of administrative remedies

at a later time if the High Desert defendants seek to dismiss plaintiff’s Eighth Amendment claims

on the ground that plaintiff failed to exhaust available administrative remedies on those claims

before bringing this action.

7

was actually denied access to the courts.” Sands v. Lewis, 886 F.2d 1166, 1171 (9th Cir. 1989). 

In the present case Plaintiff has not alleged an actual injury to his right of access to any court. 

Accordingly, the court finds that plaintiff’s allegations against defendant Cry fail to state a

cognizable claim of denial of the right of access to the courts.1

The Eighth Amendment imposes on prison officials a duty to provide humane

conditions of confinement. Wilson v. Seiter, 501 U.S. 294, 303 (1991); Hudson v. Palmer, 468

U.S. 517, 526-27 (1984). While the “unnecessary and wanton infliction of pain” constitutes

cruel and unusual punishment, “[i]t is obduracy and wantonness, not inadvertence or error in

good faith,” that characterize the forbidden conduct. Whitley v. Albers, 475 U.S. 312, 319

(1986). To state an Eighth Amendment violation, a plaintiff must allege facts showing that

objectively he suffered a sufficiently serious deprivation at the hands of a defendant and that

subjectively the defendant had a culpable state of mind in causing the deprivation to occur. 

Wilson, 501 U.S. at 298-99. Mere verbal abuse and disrespect do not violate the Eighth

Amendment proscription against cruel and unusual punishment. Gaut v. Sunn, 810 F.2d 923,

925 (9th Cir. 1987); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). The court finds

that plaintiff’s allegations against defendant Cry fail to state an Eighth Amendment claim.

Prisoners may not be retaliated against for exercising their First Amendment right

of access to the courts or their broader right to petition the government for redress of grievances. 

Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995); Schroeder v. McDonald, 55 F.3d 454, 461

(9th Cir. 1995); Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). Retaliation

by a state employee for a prisoner’s exercise of a constitutional right is actionable under § 1983,

even if the acts, when taken for different reasons, would have been proper. Mt. Healthy City Bd.

of Educ. v. Doyle, 429 U.S. 274, 283-84 (1977). To state a retaliation claim, a prisoner must

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allege facts showing that he was retaliated against for exercising a constitutional right and that

retaliation was a substantial or motivating factor for the defendant’s acts or conduct. 429 U.S. at

285-87. See also Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314-16 (9th Cir. 1989). The

prisoner must also allege facts showing that the defendant’s retaliatory action did not advance

legitimate penological goals, such as preserving institutional order and discipline. Pratt v.

Rowland, 65 F.3d 802, 806 (9th Cir. 1995); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994);

Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985). The court finds that plaintiff’s allegations

against defendant Cry fail to state a retaliation claim.

Plaintiff’s allegations against the High Desert defendants appear to state

cognizable Eighth Amendment claims against some defendants with regard to plaintiff’s serious

medical needs between July 13, 2000, and August 3, 2000. However, plaintiff has not presented

his medical claims in a complaint that meets the requirements of Rule 8 of the Federal Rules of

Civil Procedure. The voluminous and fragmented pleading does not contain a short and plain

statement of the claims, and the pleading is far from “simple, concise, and direct.” As presented,

the complaint does not provide each defendant with fair notice of the claims alleged against him

or her. Accordingly, plaintiff’s complaint will be dismissed with leave to amend.

Plaintiff must present his amended complaint on a form. He must complete all

sections of the form. Plaintiff may attach continuation pages as needed but may not attach a

separate document that purports to be his amended complaint. The defective claims against

defendant Cry should not be included in the amended complaint. In order to make a short and

plain statement of claims against the High Desert defendants, plaintiff should include the factual

allegations now found in his brief and should identify the rights violated by the defendant’s

conduct, but should not include legal briefing or analysis. The court will screen the amended

complaint to determine whether it contains factual allegations linking each defendant to the

alleged violations of plaintiff’s rights. The court will not authorize service of the amended

complaint on any defendant who is not specifically linked to the violation of plaintiff’s rights.

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 Plaintiff is informed that the Latin phrase “et al.” means “and other persons.” Plaintiff

may not use this phrase in the caption of his amended complaint or in his identification of the

defendants on the second page of the amended complaint. In subsequent filings, the caption may

be abbreviated to the first named defendant in the amended complaint, followed by the phrase “et

al.”

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Although the court will not preclude plaintiff from attaching exhibits to his

amended complaint, plaintiff is cautioned that he should attach only documents that are

specifically referenced in the amended complaint. At the pleading stage, a party is not required

to prove his claims. Evidence should be retained for use at trial or in support of or opposition to

a properly filed motion. Plaintiff should not attach exhibits in lieu of alleging facts concerning

each defendant’s conduct.

Plaintiff must list the names of all defendants in the caption section on the first

page of the complaint form. All defendants must also be listed on the second page of the form,

with each defendant’s official position and place of employment identified. Plaintiff is advised

that neither the State of California nor the California Department of Corrections has consented to

suit. Claims for damages against state entities are legally frivolous. In addition, state prisons are

not persons for purposes of § 1983. Accordingly, plaintiff’s amended complaint should not

identify as a defendant any state agency or prison. Plaintiff may not name “The CDC et al.” and

“High Desert State Prison et al.” as defendants.2

The court cannot direct the United States Marshal to serve plaintiff’s amended

complaint on any defendant identified only by first name or job description. Plaintiff may be

able to discover the names of some defendants by reviewing his medical file. If he is unable to

discover any names at this time, he may still include the defendants in his amended complaint but

must seek to discover their names and then move to amend his complaint to name them.

Plaintiff is cautioned that the court will not refer to his initial pleading in order to

find information not included in the amended complaint. Every amended complaint must be

complete in itself without reference to prior pleadings. Local Rule 15-220. Plaintiff’s amended

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complaint will supersede his original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.

1967). Therefore, in the amended complaint, as if it were the initial complaint filed in this

action, each claim and the involvement of each defendant must be sufficiently alleged.

In reviewing the file, the court finds that plaintiff recently submitted a supplement

to his complaint. This filing concerns current conditions of confinement at Pleasant Valley State

Prison, where plaintiff is now housed. Plaintiff is advised that he may not supplement or amend

his complaint to allege any claims that arose after this action was filed. If plaintiff has exhausted

available administrative remedies on claims against staff at Pleasant Valley State Prison, he may

litigate those claims in a new civil rights action filed in the Fresno division of this court. 

Plaintiff’s supplemental complaint will be disregarded, and plaintiff may not incorporate the

allegations of that pleading in his amended complaint.

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

1. Plaintiff’s September 13, 2004 application to proceed in forma pauperis is

granted.

2. Plaintiff is obligated to pay the statutory filing fee of $150.00 for this action. 

Plaintiff is assessed an initial partial filing fee of $18.11. All fees shall be collected and paid in

accordance with this court’s order to the Director of the California Department of Corrections

filed concurrently herewith.

3. Plaintiff’s complaint is dismissed with leave to amend.

4. Plaintiff is granted thirty days from the date of this order to file an amended

complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

Procedure, and this order. Plaintiff’s amended complaint must bear the case number assigned to

this action and must be labeled “Amended Complaint.” Failure to file an amended complaint in

accordance with this order may result in a recommendation that this action be dismissed without

prejudice.

5. Plaintiff’s September 2, 2005 request for case status is denied as moot.

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6. Plaintiff’s October 11, 2005 supplemental complaint will be disregarded.

DATED: December 21, 2005.

DAD:13

chub1748.14

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