McGlothin v. Harrington et al

Filing 12

ORDER DISMISSING 11 FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND signed by Magistrate Judge Gerald B. Cohn on 5/10/2011. Second Amended Complaint due within thirty (30) days. (Jessen, A)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9

MICHAEL JOHN McGLOTHIN,

CASE NO. 1:10-cv-00247-GBC (PC)

Plaintiff,

10

FIRST AMENDED COMPLAINT DISMISSED
WITH LEAVE TO AMEND

v.

11

(ECF No. 11)
12

K. HARRINGTON, et al.,
SECOND AMENDED COMPLAINT DUE
WITHIN THIRTY DAYS

Defendants.

13

/
14
SCREENING ORDER

15
16

I.

PROCEDURAL HISTORY

17

Plaintiff Michael John McGlothin (“Plaintiff”) is a state prisoner proceeding pro se in

18

this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on February

19

16, 2010 and consented to Magistrate Judge jurisdiction on March 4, 2010. (ECF Nos. 1

20

& 5.) Plaintiff’s original complaint was dismissed with leave to amend for failure to state

21

a claim. (ECF No. 9.) Plaintiff filed his First Amended Complaint on March 17, 2011.

22

(ECF No. 11.) No other parties have appeared in this action. Plaintiff’s First Amended

23

Complaint is now before this Court for screening.

24

For the reasons set forth below, the Court finds that Plaintiff has stated a cognizable

25

claim upon which relief may be granted, but has failed to provide sufficient facts to state

26

any claims as to his remaining allegations and has failed to request any form of relief.

27

///

28

//
1

1

II.

SCREENING REQUIREMENTS

2

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

3

against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

4

§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

5

raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which

6

relief may be granted, or that seek monetary relief from a defendant who is immune from

7

such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion

8

thereof, that may have been paid, the court shall dismiss the case at any time if the court

9

determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

10

granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

11

A complaint must contain “a short and plain statement of the claim showing that the

12

pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

13

not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

14

mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

15

(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set

16

forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its

17

face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual

18

allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.

19

III.

SUMMARY OF COMPLAINT

20

Plaintiff is in the custody of the California Department of Corrections and

21

Rehabilitation and is housed at Kern Valley State Prison. He brings this action against

22

Defendants K. Harrington, Sgt. D. Steen, Correctional Officer J. Torres, Correctional Officer

23

M. Capello, Lt. Castro, Lt. Garza, and Sgt. Jose.

24

Plaintiff alleges as follows: On May 12, 2009, Plaintiff, who was preparing to be

25

transported to an eye appointment, was told by Defendant Capello to change out of his

26

prison blues and into a transportation jumpsuit. As Plaintiff removed a sock, a $100 bill

27

wrapped in plastic fell out. Plaintiff immediately swallowed the object. Defendant Capello

28

asked what it was and Plaintiff replied that it was his medication. Defendant Capello told
2

1

Plaintiff to give the item to him, but Plaintiff had already swallowed it.

2

Defendant Capello then rushed over to Plaintiff, who was on the ground, grabbed

3

him by the arm, and slammed his knee into Plaintiff’s back. Plaintiff was handcuffed and

4

placed into a holding cage.

5

Defendant Torres placed Plaintiff in leg restraints and escorted Plaintiff along with

6

Defendant Steen to the facility program office. Plaintiff asked that he be allowed to put on

7

his socks. Defendants Torres and Steen denied the request. Plaintiff walked about

8

seventy feet in his bare feet. As Plaintiff walked, the leg restraints were hurting his ankle

9

bones and digging into his flesh.

10

Plaintiff was placed in the cage which was too small for him to sit down. Plaintiff had

11

to stand for four hours with the leg restraints digging into his ankles. Defendants Torres

12

and Steen required Plaintiff to put on a red jumpsuit and a pair of mitts which were

13

obviously dirty and took him to a different facility to be placed on “potty watch”.

14

Plaintiff asked Defendant Castro for different mitts, but she refused. Plaintiff broke

15

out in sores and developed an infection from having to wear the mitts. Plaintiff then asked

16

Defendant Jose for different mitts, and he refused. Plaintiff then asked for something to

17

eat, Jose just laughed.

18

While on potty watch Plaintiff’s mattress was removed from his cell at 6:00 a.m. and

19

not returned until 9:00 p.m. for two days. Plaintiff told Defendant Garza about his spinal

20

condition, to which Garza replied that he did not care.
Plaintiff fails to state what relief he requests.

21
22
23
24
25
26

IV.

ANALYSIS
The Civil Rights Act under which this action was filed provides:
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.

27
42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal
28
3

1

Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir.

2

1997) (internal quotations omitted).

3

Plaintiff appears to be making several claims for violations of his Eighth Amendment

4

rights including being subjected to cruel and unusual punishment and excessive use of

5

force.

6

A.

7

Plaintiff appears to be alleging that he was subjected to cruel and unusual

8

punishment when Defendants made him walk bare foot, stand in a cage wearing leg

9

restraints, wear dirty mitts, and when they took away his mattress during the day for two

10

Cruel and Unusual Punishment

days while he was on potty watch.

11

The Eighth Amendment’s prohibition of cruel and unusual punishment requires that

12

prison officials take reasonable measures for the safety of inmates. See Farmer v.

13

Brennan, 511 U.S. 825, 834 (1994). A prison official violates the Eighth Amendment only

14

when two requirements are met: (1) the deprivation alleged is, objectively, sufficiently

15

serious, and (2) the official is, subjectively, deliberately indifferent to the inmate’s safety.

16

See id.

17

necessities,’ are sufficiently grave to form the basis of an Eighth Amendment violation.”

18

Wilson v. Seiter, 501 U.S. 294, 298 (1991) (internal citation omitted).

“[O]nly those deprivations denying ‘the minimal civilized measure of life’s

19

The Eighth Amendment imposes duties on prison officials, who must provide all

20

prisoners with the basic necessities of life such as food, clothing, shelter, sanitation,

21

medical care and personal safety. See Farmer v. Brennan, 511 U.S. 825, 832 (1994);

22

DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 199-200 (1989);

23

Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). To prevail on such a claim a plaintiff

24

must show that objectively he suffered a “sufficiently serious” deprivation. Farmer, 511

25

U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). These are “deprivations of

26

essential food, medical care, or sanitation” or “other conditions intolerable for prison

27

confinement.” Rhodes v. Chapman, 452 U.S. 337, 348 (1981). Whether a condition of

28

confinement rises to the level of a constitutional violation may depend, in part, on the
4

1

duration of an inmate’s exposure to that condition. Keenan v. Hall, 83 F.3d 1083, 1089

2

(9th Cir. 1996) (citing Hutto v. Finney, 437 U.S. 678, 686-87 (1978)). “The more basic the

3

need, the shorter the time it can be withheld.” Hoptowit v. Ray, 682 F.2d 1287, 1259 (9th

4

Cir. 1982). The plaintiff must also show that subjectively each defendant had a culpable

5

state of mind in allowing or causing the plaintiff’s deprivation to occur. Farmer, 511 U.S.

6

at 834. In this regard, a prison official violates the Eighth Amendment “only if he knows

7

that inmates face a substantial risk of serious harm and disregards that risk by failing to

8

take reasonable measures to abate it.” Id. at 847. Under this standard, a prison official

9

must have a “sufficiently culpable state of mind,” one of deliberate indifference to the

10

inmate’s health or safety. Id.

11

As stated in the prior Screening Order, Plaintiff’s allegations that he was made to

12

walk barefoot on the ground, that he had to stand for hours in a cage in leg restraints that

13

caused him pain, and that his mattress was removed from the cell during the day are

14

insufficient to show a deprivation sufficiently serious to state a cognizable claim. He

15

walked approximately 70 feet in his bare feet; he was forced to stand for four hours with

16

the leg restrains on; and the mattress was returned every night for him to sleep on. These

17

are not sufficiently serious deprivations, especially considering the duration. While the

18

Court is giving Plaintiff leave to amend this claim, Plaintiff would be well-served to

19

concentrate his attention elsewhere.

20

Additionally, Plaintiff alleges that the mitts he was required to wear were unsanitary

21

and caused him to develop sores and an infection. Defendants Steen and Torres forced

22

Plaintiff to put the dirty mitts on. However, Plaintiff does not state that they were aware that

23

the mitts were dirty. Plaintiff does not state that he told them. Plaintiff alleges that “they

24

knew this, how could they not know as the smell was on the mitts.” (ECF No. 20, Pl.’s 1st

25

Am. Compl. p. 6.) Plaintiff again fails to allege knowledge by Defendants Steen and

26

Torres. He attributes knowledge to them because of the smell emitted by the mitts. This

27

is insufficient. Defendants must have knowledge of the risk to have a culpable state of

28

mind and be held liable. Merely attributing knowledge to them because of a smell is
5

1

insufficient to reach an Eighth Amendment violation. The Court will grant Plaintiff leave to

2

amend.

3

Both Defendant Castro and Jose refused to give Plaintiff different mitts. Plaintiff

4

states that he told both Defendant Castro and Jose that the mitts were “tainted with human

5

feces” and that they smelled terribly. After Defendant Castro’s refusal, Plaintiff’s hands,

6

wrists, and arms broke out in sores. Plaintiff then asked Defendant Jose for different mitts,

7

explaining that the mitts were dirty. Defendant Jose refused. The Court finds that Plaintiff

8

has stated a claim for violation of his Eighth Amendment rights by Defendants Castro and

9

Jose. It appears that Plaintiff had to wear the feces covered mitts for approximately two

10

days while on potty watch. This is a sufficiently serious deprivation, which was allowed to

11

continue by Defendants Castro and Jose.

12

aware of the condition of the mitts and that they then were deliberately indifferent to the

13

risk created by the dirty mitts.

Plaintiff alleges that both Defendants were

14

B.

15

Plaintiff alleges that Defendant Capello acted with excessive force in response to

16

Excessive Force

his possession of contraband.

17

The analysis of an excessive force claim brought pursuant to Section 1983 begins

18

with “identifying the specific constitutional right allegedly infringed by the challenged

19

application of force.”

20

Amendment’s prohibition on cruel and unusual punishment applies to incarcerated

21

individuals, such as the Plaintiff here. Whitley v. Albers, 475 U.S. 312, 318 (1976). To

22

state an Eighth Amendment claim, a plaintiff must allege that the use of force was

23

“unnecessary and wanton infliction of pain.” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir.

24

2001).

25

contemporary standards of decency, regardless of whether or not significant injury is

26

evident. Hudson v. McMillian, 503 U.S. 1, 9; see also Oliver v. Keller, 289 F.3d 623, 628

27

(9th Cir. 2002) (Eighth Amendment excessive force standard examines de minimis uses

28

of force, not de minimis injuries). However, not “every malevolent touch by a prison guard

Graham v. Connor, 490 U.S. 386, 394 (1989).

The Eighth

The malicious and sadistic use of force to cause harm always violates

6

1

gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. “The Eighth Amendment’s

2

prohibition of cruel and unusual punishments necessarily excludes from constitutional

3

recognition de minimis uses of physical force, provided that the use of force is not of a sort

4

repugnant to the conscience of mankind.” Id. at 9-10 (internal quotations marks and

5

citations omitted).

6

Whether force used by prison officials was excessive is determined by inquiring if

7

the “force was applied in a good-faith effort to maintain or restore discipline, or maliciously

8

and sadistically to cause harm.” Hudson, 503 U.S. at 6-7. The Court must look at the

9

need for application of force; the relationship between that need and the amount of force

10

applied; the extent of the injury inflicted; the extent of the threat to the safety of staff and

11

inmates as reasonably perceived by prison officials; and any efforts made to temper the

12

severity of the response. See Whitley, 475 U.S. at 321. The absence of significant injury

13

alone is not dispositive of a claim of excessive force. See Wilkens v. Gaddy, 130 S.Ct.

14

1175, 1176-77 (2010).

15

Again, Plaintiff’s allegation that Defendant Capello panicked and acted in an

16

unprofessional manner by taking him to the ground and placing his knee in Plaintiff’s back

17

after he swallowed the contraband does not state a plausible claim that Defendant’s

18

actions were done maliciously and sadistically to cause harm. Rather these actions seem

19

to be in response to Plaintiff’s act of swallowing the contraband in an attempt to keep the

20

officer from discovering what it was.

21

response to keep Plaintiff from disposing of the contraband would appear to be an effort

22

to stop Plaintiff’s misconduct and restore discipline, and not done maliciously or

23

sadistically. While the Court is giving Plaintiff leave to amend this claim, Plaintiff would be

24

well-served to concentrate on his other claims.

In the prison context, Defendant’s immediate

25

C.

Personal Participation and Supervisory Liability

26

Plaintiff briefly names K. Harrington as a Defendant, but he does not include this

27

Defendant in the statement of the case at all. Plaintiff could be arguing that this Defendant

28

is liable for the conduct of his or her subordinates as he or she was not present and did not
7

1

participate in the complained of conduct as described by Plaintiff.

2

Under Section 1983, Plaintiff must demonstrate that each named Defendant

3

personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930,

4

934 (9th Cir. 2002). The Supreme Court has emphasized that the term “supervisory

5

liability,” loosely and commonly used by both courts and litigants alike, is a misnomer.

6

Iqbal, 129 S.Ct. at 1949.

7

unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id.

8

at 1948. Rather, each government official, regardless of his or her title, is only liable for

9

his or her own misconduct, and therefore, Plaintiff must demonstrate that each defendant,

10

through his or her own individual actions, violated Plaintiff’s constitutional rights. Id. at

11

1948-49.

“Government officials may not be held liable for the

12

When examining the issue of supervisor liability, it is clear that the supervisors are

13

not subject to vicarious liability, but are liable only for their own conduct. Jeffers v. Gomez,

14

267 F.3d 895, 915 (9th Cir. 2001); Wesley v. Davis, 333 F.Supp.2d 888, 892 (C.D.Cal.

15

2004). In order to establish liability against a supervisor, a plaintiff must allege facts

16

demonstrating (1) personal involvement in the constitutional deprivation, or (2) a sufficient

17

causal connection between the supervisor’s wrongful conduct and the constitutional

18

violation. Jeffers, 267 F.3d at 915; Wesley, 333 F.Supp.2d at 892. The sufficient causal

19

connection may be shown by evidence that the supervisor implemented a policy so

20

deficient that the policy itself is a repudiation of constitutional rights.

21

F.Supp.2d at 892 (internal quotations omitted). However, an individual’s general

22

responsibility for supervising the operations of a prison is insufficient to establish personal

23

involvement. Id. (internal quotations omitted).

24

Wesley, 333

Supervisor liability under Section 1983 is a form of direct liability.

Munoz v.

25

Kolender, 208 F.Supp.2d 1125, 1149 (S.D.Cal. 2002). Under direct liability, Plaintiff must

26

show that Defendant breached a duty to him which was the proximate cause of his injury.

27

Id. “‘The requisite causal connection can be established . . . by setting in motion a series

28

of acts by others which the actor knows or reasonably should know would cause others to
8

1

inflict the constitutional injury.’” Id. (quoting Johnson v. Duffy, 588 F.2d 740, 743-744 (9th

2

Cir. 1978)).

3

indifference, a plaintiff may state a claim for supervisory liability based upon the

4

supervisor’s knowledge of and acquiescence in unconstitutional conduct by others.” Star

5

v. Baca, ___ F.3d ___, 2011 WL 477094, *4 (9th Cir. Feb. 11, 2011).

However, “where the applicable constitutional standard is deliberate

6

Plaintiff has not alleged facts demonstrating that all of the named Defendants

7

personally acted to violate his rights. Plaintiff needs to specifically link each Defendant to

8

a violation of his rights. Plaintiff shall be given the opportunity to file an amended

9

complaint curing the deficiencies in this respect.

10

V.

CONCLUSION AND ORDER

11

The Court finds that Plaintiff’s First Amended Complaint states a Section 1983 claim

12

upon which relief may be granted. However, Plaintiff has failed to request any relief from

13

the Court. Therefore, the Court will provide Plaintiff time to file an amended complaint to

14

address this correctable deficiency. See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir.

15

1987). In his Amended Complaint, Plaintiff must demonstrate that the alleged incident or

16

incidents resulted in a deprivation of his constitutional rights. Iqbal, 129 S.Ct. at 1948-49.

17

Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim that is plausible on its

18

face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Plaintiff must also

19

demonstrate that each defendant personally participated in the deprivation of his rights.

20

Jones, 297 F.3d at 934.

21

Plaintiff should note that although he has been given the opportunity to amend, it

22

is not for the purposes of adding new defendants or claims. Plaintiff should focus the

23

amended complaint on claims and defendants relating solely to issues arising out of the

24

incidents discussed herein. And, Plaintiff must make a relief request.

25

Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint

26

be complete in itself without reference to any prior pleading. As a general rule, an

27

amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55,

28

57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer
9

1

serves any function in the case. Therefore, in an amended complaint, as in an original

2

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

3

The amended complaint should be clearly and boldly titled “Second Amended Complaint,”

4

refer to the appropriate case number, and be an original signed under penalty of perjury.

5

Based on the foregoing, it is HEREBY ORDERED that:

6

1.

Plaintiff’s Complaint is dismissed for failure to state a claim, with leave to file

7

an amended complaint within thirty (30) days from the date of service of this

8

order;
2.

9

and refer to the case number 1:10-cv-247-GBC (PC); and

10
3.

11

14
15

If Plaintiff fails to comply with this order, this action will be dismissed for
failure to state a claim upon which relief may be granted.

12
13

Plaintiff shall caption the amended complaint “Second Amended Complaint”

IT IS SO ORDERED.
Dated:
1j0bbc

May 10, 2011
UNITED STATES MAGISTRATE JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
10