1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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 state prisoner without counsel prosecuting a

civil rights action against prison officials. The action

proceeds on the September 6, 2005, amended complaint.

Plaintiff claims his constitutional rights were violated in

connection with a disciplinary determination which imposed a loss

of 90 days’ good time credits. Plaintiff seeks damages.

In order to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence invalid, 

Case 2:04-cv-01893-FCD-EFB Document 20 Filed 12/27/05 Page 1 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

a § 1983 plaintiff must prove that the conviction or sentence has

been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court’s

issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S.

477 (1994). A claim for damages bearing that relationship to a

conviction or sentence that has not been so invalidated is not

cognizable under § 1983. Thus, when a state prisoner seeks

damages in a § 1983 suit, the district court must consider

whether a judgment in favor of the plaintiff would necessarily

imply the invalidity of his conviction or sentence; if it would,

the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been

invalidated. Id. The Heck bar applies in cases claiming due

process violations in connection with prison disciplinary

determinations affecting the duration of plaintiff’s confinement. 

Edwards v. Balisok, 520 U.S. 641 (1997). Plaintiff’s challenge

to the disciplinary determination is not cognizable under § 1983,

regardless of whether he challenges the result or simply the

procedures that were followed. See Edwards v. Balisok, 520 U.S.

641.

It appears from the pleading plaintiff may intend to allege

Eighth Amendment claims based on inadequate medical care or

unconstitutional conditions of confinement. A prisoner who

claims his Eighth Amendment guarantee against cruel and unusual

punishment has been violated by inadequate medical care must

Case 2:04-cv-01893-FCD-EFB Document 20 Filed 12/27/05 Page 2 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

allege that on a specific day an identified state actor with

individual responsibility for obtaining or providing medical care

knew the prisoner faced substantial risk of serious harm but

deliberately disregarded the risk by failing to take reasonable

measures resulting in avoidable persistent severe pain or

avoidable substantial personal injury. A prisoner who claims the

conditions of his imprisonment violate the Eighth Amendment

prohibition against cruel and unusual punishment must 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

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

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

The amended complaint does not state a cognizable claim

against any defendant. 28 U.S.C. § 1915A. The pleading is

dismissed with leave to amend.

Any second amended complaint must show the federal court has 

Case 2:04-cv-01893-FCD-EFB Document 20 Filed 12/27/05 Page 3 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4

jurisdiction and that plaintiff’s action is brought in the right

place, that plaintiff is entitled to relief if plaintiff’s

allegations are true, and 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 a second 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.

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).

Case 2:04-cv-01893-FCD-EFB Document 20 Filed 12/27/05 Page 4 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

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).

A district court must construe pro se pleading “liberally”

to determine if it states a claim and, prior to dismissal, tell a

plaintiff of deficiencies in his complaint and give plaintiff an

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

Cir. 1986).

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

Case 2:04-cv-01893-FCD-EFB Document 20 Filed 12/27/05 Page 5 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

6

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

of these instructions. 

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 an amended complaint

he certifies he has made reasonable inquiry and has 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 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). 

Plaintiff is further 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

action.

Accordingly, the court hereby orders that the September 6,

2005, amended complaint is dismissed with leave to amend within

30 days. Failure to file an amended complaint will result in a 

Case 2:04-cv-01893-FCD-EFB Document 20 Filed 12/27/05 Page 6 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

7

recommendation this action be dismissed for failure to state a

claim. If plaintiff files an amended complaint stating a

cognizable claim the court will proceed with service of process

by the United States Marshal. 

So ordered.

Dated: December 27, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

Case 2:04-cv-01893-FCD-EFB Document 20 Filed 12/27/05 Page 7 of 7