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United States District Court

Eastern District of California 

Anthony L. Patton,

Plaintiff, No. Civ. S 04-1893 FCD PAN P

vs. Order

R. S. Johnson, et al.,

Defendants.

-oOoPlaintiff is a prisoner, without counsel, seeking leave to

commence an action against prison officials for civil rights

violations in forma pauperis pursuant to 28 U.S.C. § 1915(a). 

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) (1996). 

Plaintiff must make monthly payments of 20 percent of the

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1 What is more, the court cannot require defendants to reply to such

complaints without first determining plaintiff has a reasonable opportunity to

prevail on the merits of his claims. 42 U.S.C. § 1997e(g). 

2

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. 

Congress burdens this court with the task of scrutinizing,

at the outset of the litigation, each complaint in “a civil

action in which a prisoner seeks redress from a governmental

entity or officer or employee of a governmental entity.” 28

U.S.C. § 1915A(a). Under that rigorous review the court must

identify cognizable claims or dismiss the complaint, or any

portion of it, if it is frivolous, malicious, fails to state a

claim upon which relief may be granted, or seeks monetary relief

from a defendant who is immune from such relief.1 The court’s

affirmative duty to screen prisoner plaintiffs’ pleading makes

such cases unique. 

The complaint in this action is so obscure that the court

cannot reasonably discharge its responsibility under § 1915A(a)

until plaintiff first satisfies his own duty to comply with the

pleading requirements set forth in Rule 8 of the Federal Rules of

Civil Procedure. This rule requires the pleader to set

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2 A party need only plead in terms that are sufficient to provide the

necessary notice to his adversary, and evidentiary material supporting the

general statements normally should not be set out in the pleadings but rather

should be left to be brought to light during the discovery process. Wright &

Miller § 1281 Rule 8 p. 519.

3 In this regard, the mere fact that this action falls into the

exclusive category the court must screen under § 1915A dictates a strict

interpretation of whether the pleading is sufficiently short and plain. The

undersigned has over 200 such cases on his docket at any one time. One

poorly-pleaded, 30-page prisoner complaint, multiplied by 200, yields 6,000

pages of material this court has an affirmative duty to review and screen (not

to mention the frequency with which a pro se prisoner’s pleading must go

through amendment before service of process). Both the defendants and the

court must select the relevant material from the mass of verbiage. “[T]he law

does not require nor does justice demand that a judge must grope through

[thousands of] pages of irrational prolix and redundant pleadings, containing

matters foreign to the issue involved . . . in order to determine the grounds

for the [plaintiff’s] complaint.” Passic v. Michigan, 98 F. Supp. 1015, 1016-

17 (D.C. Mich. 1951). The court’s transition to a paperless record system

greatly exacerbates the problem.

3

forth his averments in a simple, concise, and direct manner.2

The degree of simplicity and conciseness required depends on the

subject matter of the litigation, the nature of the claims or

defenses presented and the number of parties involved. Wright &

Miller, Federal Practice & Procedure, vol. 5 § 1281 & n. 12

(1990) (explaining that an antitrust or copyright pleading due to

its complexity, must be pleaded with more detail than a simple

negligence complaint).3

In reviewing the complaint to determine if it states a claim

for relief, the court will construe plaintiff’s pleading

liberally. See Haines v. Kerner, 404 U.S. 519 (1972). The court

will not dismiss a complaint without first telling plaintiff what

the deficiencies are and giving him an opportunity to cure them. 

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4

Noll v. Carlson, 809 F.2d 1446 (9th Cir. 1987); Eldridge v.

Block, 832 F.2d 1132, 1136 (9th Cir. 1987).

But before undertaking to determine whether the complaint

may have merit, the court may insist upon compliance with its

rules. McNeil v. United States, 508 U.S. 106 (1993) (federal

rules apply to all litigants, including prisoners lacking access

to counsel); Crawford-El v. Britton, 523 U.S. 574 (1998)

(encouraging “firm application” of federal rules in prisoner

cases).

Plaintiff’s complaint presents a blanket challenge to

conditions of confinement in a new “SHU” unit, without linking

defendants to the constitutional deprivation, and claims some

defendants have made plaintiff a “target of retribution.” The

pleading violates Rule 8 of the Federal Rules of Civil Procedure. 

In reviewing plaintiff’s complaint, the court is required to

guess who is being sued for what. If the pleading were served in

its present form it would not give defendants fair notice of the

claims against them and, indeed, their best guess about the

nature of plaintiff’s complaint may be quite different than the

court’s. See McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996)

(court should be able to read the complaint in minutes, not

hours, and may consider the rights of defendants to be free from

costly and harassing litigation and other litigants waiting their

turns to have other matters resolved); see also Nevijel v. North

Coast Life Insurance Co., 651 F.2d 671 (9th Cir. 1971); Von

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5

Poppenheim v. Portland Boxing & Wrestling Commission, 442 F.2d

1047 (9th Cir. 1971).

Plaintiff’s task is modest. He is not required to identify

the law that makes the alleged conduct wrong. A pleader is free

to use his own language to state, simply and directly, the wrong

that has been committed, and clearly explain how each state actor

identified as a defendant was involved and what relief plaintiff

requests of each defendant. Jones v. Community Redevelopment

Agency of the City of Los Angeles, 733 F.2d 646 (9th Cir. 1984);

Johnson v. Duffy, 588 F.2d 740 (9th Cir. 1978). 

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 denied to plaintiff some specifically

identified basic human need such as food, clothing, shelter,

medical care or safety, knowing that plaintiff thereby faced a

substantial risk of serious harm and disregarded that risk by

failing to take or cause to be taken reasonable measures to abate

the risk that were within his or her power. See Farmer v.

Brennan, 511 U.S. 825 (1994); Helling v. McKinney, 509 U.S. 25

(1993). (On the other hand, harsh and uncomfortable conditions

are expected; convicted prisoners are entitled only to the

minimal civilized measure of life’s necessities and even inhumane

conditions, that is risks so grave even to convicted felons that

they are repugnant to those who have consigned the plaintiff to

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6

prison, do not amount to punishment if the state actor is

powerless to change them or does not know of them.)

“Within the prison context, a viable claim of First

Amendment retaliation entails five basic elements: (1) An

assertion that a state actor took some adverse action against an

inmate (2) because of (3) that prisoner's protected conduct, and

that such action (4) chilled the inmate's exercise of his First

Amendment rights, and (5) the action did not reasonably advance a

legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,

567 (9th Cir. 2005) (citations omitted). In assessing the fourth

requirement, the court at the pleading stage should ask “‘whether

an official’s acts would chill or silence a person of ordinary

firmness from future First Amendment activities.’” Id. at 568,

quoting Mendocino environmental Center v. Mendocino County, 192

F.3d 1283, 1300 (9th Cir. 1999). 

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

he wishes to continue this litigation he must file an amended

complaint.

Plaintiff’s amended complaint must adhere to the following

requirements:

A complaint must contain a caption including the name of the

court and the names of all parties. Fed. R. Civ. P. 10(a). 

More than one claim against a single defendant may be joined

in the same action. Fed. R. Civ. P. 18(a).

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4 Negligence is not actionable under 42 U.S.C. § 1983. However, to

illustrate the simplicity and brevity of statement contemplated by the rules

(see Fed. R. Civ. P. 84), this example of a complaint based upon an automobile

accident is provided:

1. Allegation of jurisdiction.

2. On June 1, 1936, in a public highway called Boylston Street in

Boston, Massachusetts, defendant negligently drove a motor vehicle

against plaintiff who was then crossing said highway.

3. As a result plaintiff was thrown down and had his leg broken

and was otherwise injured, was prevented from transacting his business,

suffered great pain of body and mind, and incurred expenses for medical

attention and hospitalization in the sum of one thousand dollars.

Wherefore plaintiff demands judgment against defendant in the sum

of ____ dollars and costs.

Form 9, Appendix of Forms to the Federal Rules of Civil Procedure.

7

Claims against different defendants may be joined in the

same action only if the claims arise from the same transactions

or occurrences. Fed. R. Civ. P. 20(a).

Each claim founded upon a separate transaction or occurrence

must be set apart as a “separate count.” Within each count, the

circumstances that give rise to the claim must be alleged in

separate, numbered paragraphs. Fed. R. Civ. P. 10(b). 

 These allegations must be short and plain, simple and

direct and describe the relief plaintiff seeks. Fed. R. Civ. P.

8(a); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002);

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

2002).4

Plaintiff must sign the complaint. Fed. R. Civ. P. 11(a).

The amended complaint must be complete in itself without

reference to plaintiff’s original complaint. Local Rule 15-220.

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8

Plaintiff is admonished that a prisoner pursuing civil

rights claims without counsel, like all other litigants, is

required to obey the court’s orders, including an order to amend

his pleading. Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992);

Pagtalunan v. Galaza, 291 F.3d 639 (9th Cir. 2002). His failure

to obey the court’s orders and the local and federal rules and

meet his responsibilities in prosecuting this action may justify

dismissal, including dismissal with prejudice. Ferdik, 963 F.2d

1258 (affirming dismissal with prejudice for pro se prisoner’s

failure to comply with order requiring filing of amended civil

rights complaint); Pagtalunan, 291 F.3d 639 (affirming dismissal

with prejudice for pro se prisoner’s failure to comply with order

requiring filing of amended habeas petition); Moore v. United

States, 193 F.R.D. 647 (N.D. Cal. 2000) (denying motion for leave

to file third amended complaint and dismissing action with

prejudice for pro se plaintiff’s failure to comply with Rule 8);

Franklin v. Murphy, 745 F.2d 1221, 1232-33 (9th Cir. 1984)

(affirming dismissal with prejudice for pro se prisoner’s failure

to prosecute); Carey v. King, 856 F.2d 1439 (9th Cir. 1988)

(affirming dismissal without prejudice for pro se prisoner’s

failure to comply with local rule requiring he notify the court

of any change of address).

Accordingly, the court hereby orders that:

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

granted. Plaintiff must pay a $150 filing fee. 

2. The April 12, 2005, order to show cause is discharged.

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

within 60 days. Plaintiff shall file an original and one copy of

his amended complaint, which must bear the docket number assigned

to this case and be titled “Amended Complaint.” Failure to

comply with this order may result in a recommendation the action

be dismissed and, if warranted, that dismissal will be with

prejudice.

Dated: June 29, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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