Tafilele v. Harrington et al

Filing 13

ORDER DISMISSING Complaint WITH LEAVE TO AMEND (ECF No. 1 ), Amended Complaint Due Withi Thirty Days, signed by Magistrate Judge Gerald B. Cohn on 6/16/2011. Amended Complaint due by 7/21/2011 (Attachments: # 1 Amended Complaint Form)(Fahrney, E)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

ASOFA V. TAFILELE,

11

Plaintiff,
v.

12
13

KELLY HARRINGTON, et al.,

14

Defendants.

15

CASE NO.

1:10-cv-01493-GBC (PC)

ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND
(ECF No. 1)
AMENDED COMPLAINT DUE WITHIN
/ THIRTY DAYS

16
SCREENING ORDER

17
18

I.

19

PROCEDURAL HISTORY
Plaintiff Asofa Tafilele (“Plaintiff”), an inmate in the custody of the California

20
Department of Corrections and Rehabilitation (“CDCR”), is proceeding pro se and in forma
21
22
23

pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action
on August 18, 2010. (ECF No. 1.) No other parties have appeared.

24
25
26

Plaintiff’s Complaint is now before this Court for screening. For the reasons set forth
below, the Court finds that Plaintiff has failed to state any cognizable claims.
///

27
1

1

II.

2
3

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

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

4
5

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

6

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

7

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

8

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

9

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

10

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

11
12

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

13

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

14

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

15

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

16

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

17

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

18
19

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

20

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

21

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

22

III.

23
24

SUMMARY OF COMPLAINT
Plaintiff brings this action for use of excessive force, failure to protect, and

inadequate medical care, each in violation of the Eighth Amendment, a due process

25
26

violation under the Fourteenth Amendment, and a retaliation claim under the First

27
2

1

Amendment. Plaintiff names the following individuals as Defendants: Kelly Harrington,

2

Warden; Northcutt, correctional officer; Rivera, correctional officer sergeant; Solez,

3

correctional officer; Mata, correctional officer; Williams, correctional officer; Hernandez,

4
5

correctional officer; Murphy, correctional officer; Spurgeon, correctional officer; Wojick,

6

correctional officer; Lomelli, correctional officer; and Meza, licensed vocational nurse. All

7

Defendants were employed at Kern Valley State Prison at the time of the incident.

8

Plaintiff alleges as follows: On January 21, 2010, Plaintiff was walking laps in the

9

morning day room. Defendant Northcutt blocked Plaintiff’s path, so Plaintiff walked around

10

him. Northcutt yelled for Plaintiff to stay behind him. Plaintiff continued walking. Northcutt

11
12

blocked Plaintiff’s path again and again told Plaintiff to stay behind him.

Plaintiff

13

responded “whatever man” and continued walking. Northcutt pushed Plaintiff, and yelled

14

at him. Plaintiff responded by asking him what his problem was. Northcutt then punched

15

Plaintiff in the face. Plaintiff was pepper sprayed and struck repeatedly on both sides in

16

his ribs and stomach. Plaintiff fell to the ground, crawled away, and proned out. Plaintiff

17

was again peppered sprayed, struck several more times, shot in the arm by Defendant

18
Mata, and picked up and thrown to the ground. During some point, his left arm was
19
20

broken. Restraints were placed on Plaintiff and he was drug away while being struck on

21

the head and arms. Someone sat on Plaintiff and slammed his head against the wall.

22

Plaintiff was struck in the mouth and then lost consciousness. Plaintiff told Defendant

23

Meza that he was in pain, and she told him to fill out a medical request form where ever

24

he went.

25
On April 7, 2010, Defendants Lomelli and Medina approached Plaintiff and asked
26
27

if he had filed a complaint for staff misconduct. Lomelli then threatened Plaintiff to drop
3

1

the complaint or be assaulted again.

2
3

Plaintiff seeks declaratory relief, compensatory damages, and punitive damages.
IV.

ANALYSIS

4
The Civil Rights Act under which this action was filed provides:

5

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.

6
7
8
9
10

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

11

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

12

1997) (internal quotations omitted).

13

A.

Eighth Amendment Claims

14
1.

Excessive Use of Force

15
Plaintiff claims that Defendants used excessive force in violation of his constitutional

16
17

rights.

18

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

19

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

20

application of force.”

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

The Eighth

21
Amendment’s prohibition on cruel and unusual punishment applies to incarcerated
22
23

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

24

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

25

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

26

2001).

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

27
4

1

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

2

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

3

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

4
5

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

6

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

7

prohibition of cruel and unusual punishments necessarily excludes from constitutional

8

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

9

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

10

citations omitted).

11
12

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

13

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

14

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

15

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

16

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

17

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

18
19

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

20

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

21

1175, 1176-77 (2010).

22

As to Defendant Northcutt, Plaintiff alleges that they had a verbal confrontation

23

when Plaintiff did not do what Northcutt told him to do, Plaintiff walked away, Northcutt

24

responded with force, and Plaintiff crawled away. As currently described, it appears as

25
though Defendant Northcutt used force to restore and maintain discipline. Plaintiff states
26
27

that he directly disobeyed several orders given by Northcutt, verbally confronted Northcutt,
5

1

and then tried to crawl away. Defendant Northcutt applied force, but it does not appear

2

that he did so maliciously or sadistically.

3

As to Defendant Mata, Plaintiff only states that he was shot by Mata. Considering

4
5

the confrontation, both verbal and physical, again it does not appear that Defendant Mata’s

6

use of force was excessive. He did not use the force sadistically or maliciously, but instead

7

to restore discipline.

8

As for the remaining allegations, Plaintiff may be able to state a claim; however, he

9

fails to name which Defendants were responsible for which actions. Plaintiff will be given

10

leave to amend. In his amended complaint, Plaintiff needs to describe in greater detail

11
12
13
14
15
16
17

who was involved in the incident and what actions they performed.
2.

Failure to Protect Claim

Plaintiff alleges that Defendants Rivera, Williams, Hernandez, Murphy, and
Spurgeon failed to protect him.
“[A] prison official may be held liable under the Eighth Amendment for denying
humane conditions of confinement only if he knows that inmates face a substantial risk of

18
serious harm and disregards that risk by failing to take reasonable measures to abate it.”
19
20

Farmer v. Brennan, 511 U.S. 825, 847 (1994). “A prison official may be held liable for

21

failing to protect an inmate from another prison guard if he knew of an excessive risk to

22

inmate health or safety posed by the other prison guard and disregarded that risk.” Jones

23

v. Ruiz, 2010 WL 3505119, *7 (W.D.Tex Sept. 2, 2010) (citations omitted). The Ninth

24

Circuit has noted that “police officers have a duty to intercede when their fellow officers

25
violate the constitutional rights of a suspect or other citizen.” U.S. v. Koon, 34 F.3d 1416,
26
27

1446-47 n.25 (9th Cir. 1994), rev’d on other grounds by 518 U.S. 81 (1996); Estate of
6

1

Brutsche v. City of Federal Way, 2006 WL 3734153, *5-6 (W.D.Wash. Dec.14, 2006). “If

2

a bystander officer fails to fulfill this duty, he can face the same liability as colleagues who

3

directly violated the suspect’s rights.” Aragonez v. County of San Bernardino, 2008 WL

4
5

4948410, *6 (C.D.Cal. Nov. 18, 2008). Bystander officers only have a duty to stop a

6

violation where they know or have reason to know of the constitutional violation. Ting v.

7

U.S., 927 F.2d 1504, 1511 (9th Cir. 1991), see also Ramirez v. Butte-Silver Bow County,

8

298 F.3d 1022, 1029-30 (9th Cir. 2002) (holding that bystander officers could not be held

9

liable for failing to stop an unlawful search where they had no reason to believe the warrant

10

at issue was defective).

11
12

However, “law enforcement officers are only liable for failure to intercede if they had

13

a ‘realistic opportunity’ to do so.” Radwan v. County of Orange, 2010 WL 3293354, *24

14

(C.D.Cal. Aug. 18, 2010); see Cunningham v. Gates, 229 F.3d 1271, 1289-90 (9th Cir.

15

2000). If an officer is not present during a constitutional violation, or the violation happens

16

too quickly, there may be no realistic opportunity to intercede. See id.; Knapps v. City of

17

Oakland, 647 F.Supp.2d 1129, 1159-60 (N.D.Cal. 2009).

18
Plaintiff fails to allege sufficient facts to sustain a claim of failure to protect against
19
20

the listed Defendants. Plaintiff states that Defendants Rivera, Williams, Hernandez,

21

Murphy, and Spurgeon failed to protect him, but does not allege any facts related to this

22

claim. He does not state that these Defendants had a reasonable opportunity to intercede,

23

nor does he state that they were aware of the risk posed by the other Defendants. Plaintiff

24

states that each of these Defendants responded to the incident and failed to protect him,

25
but states nothing else related to such a claim. To state a claim, Plaintiff must include
26
27

additional facts that allow the Court to determine if Defendants Rivera, Williams,
7

1

Hernandez, Murphy, and Spurgeon had knowledge of the other Defendants propensities

2

and were deliberately indifferent to a danger created by other Defendants or that they had

3

an opportunity to intercede.

4
5
6
7

3.

Medical Care Claim

Plaintiff alleges that Defendant Meza failed to provide adequate medical care after
he was injured in the incident.

8

“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an

9

inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439

10

F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The

11
12

two part test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical

13

need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in further

14

significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s

15

response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting

16

McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds,

17

WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (internal quotations

18
omitted)). Deliberate indifference is shown by “a purposeful act or failure to respond to a
19
20

prisoner’s pain or possible medical need, and harm caused by the indifference.” Jett, 439

21

F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). In order to state a claim for violation of

22

the Eighth Amendment, a plaintiff must allege sufficient facts to support a claim that the

23

named defendants “[knew] of and disregard[ed] an excessive risk to [Plaintiff’s] health . .

24

. .” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

25
In applying this standard, the Ninth Circuit has held that before it can be said that
26
27

a prisoner’s civil rights have been abridged, “the indifference to his medical needs must be
8

1

substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this

2

cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980)

3

(citing Estelle, 429 U.S. at 105-06). “[A] complaint that a physician has been negligent in

4
5

diagnosing or treating a medical condition does not state a valid claim of medical

6

mistreatment under the Eighth Amendment. Medical malpractice does not become a

7

constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106;

8

see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin, 974

9

F.2d at 1050, overruled on other grounds, WMX, 104 F.3d at 1136. Even gross negligence

10

is insufficient to establish deliberate indifference to serious medical needs. See Wood v.

11
12

Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

13

Also, “a difference of opinion between a prisoner-patient and prison medical

14

authorities regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon,

15

662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted). To prevail, Plaintiff “must

16

show that the course of treatment the doctors chose was medically unacceptable under

17

the circumstances . . . and . . . that they chose this course in conscious disregard of an

18
excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)
19
20

(internal citations omitted). A prisoner’s mere disagreement with diagnosis or treatment

21

does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242

22

(9th Cir. 1989).

23
24

Plaintiff alleges that he was shot, repeatedly struck and sprayed with pepper spray,
and that his left arm was broken. Plaintiff states that while in the holding cage, he told

25
Defendant Meza that he was in pain and asked her for medical treatment and she told him
26
27

to file a request from where ever he ended up.
9

1

As currently pleaded, Plaintiff has failed to allege facts sufficient to show deliberate

2

indifference to a serious medical need. Plaintiff has not set forth facts indicating that, other

3

than telling Defendant Meza that he was in pain, he told her anything else like that he had

4
5

a possibly broken arm or any other serious medical need. Plaintiff’s allegations with

6

respect to his injuries and interaction with Defendant Meza are too vague to allow the Court

7

to determine whether Defendant Meza was deliberately indifferent to any possible serious

8

medical need.

9
10

The Court will grant Plaintiff leave to amend this claim and attempt to set forth
sufficient facts to state such a claim. In his amended complaint, Plaintiff should describe

11
12

in greater detail his encounter with Defendant Meza.

13

B.

14

Plaintiff makes one statement about Defendant Lomelli “conspiring with officers to

15
16
17

Conspiracy

file false charges against Plaintiff and for threatening Plaintiff.” (Pl.’s Compl. p. 6.)
A conspiracy claim brought under Section 1983 requires proof of “‘an agreement or
meeting of the minds to violate constitutional rights,’” Franklin v. Fox, 312 F.3d 423, 441

18
19

(9th Cir. 2001) (quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d

20

1539, 1540-41 (9th Cir. 1989) (citation omitted)), and an actual deprivation of constitutional

21

rights, Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward

22

County, Oklahoma, 866 F.2d 1121, 1126 (9th Cir. 1989)). “‘To be liable, each participant

23

in the conspiracy need not know the exact details of the plan, but each participant must at

24

least share the common objective of the conspiracy.’” Franklin, 312 F.3d at 441 (quoting

25
United Steel Workers, 865 F.2d at 1541).
26
27

The federal system is one of notice pleading, and the Court may not apply a
10

1

heightened pleading standard to Plaintiff’s allegations of conspiracy. Empress LLC v. City

2

and County of San Francisco, 419 F.3d 1052, 1056 (9th Cir. 2005); Galbraith v. County of

3

Santa Clara, 307 F.3d 1119, 1126 (2002). However, although accepted as true, the

4
5

“[f]actual allegations must be [sufficient] to raise a right to relief above the speculative level

6

. . . .” Twombly, 127 S.Ct. at 1965 (citations omitted). A plaintiff must set forth “the

7

grounds of his entitlement to relief[,]” which “requires more than labels and conclusions,

8

and a formulaic recitation of the elements of a cause of action . . . .” Id. at 1964-65

9

(internal quotations and citations omitted). As such, a bare allegation that Defendants

10

conspired to violate Plaintiff’s constitutional rights will not suffice to give rise to a conspiracy

11
12

claim under section 1983.

13

As stated above, bare allegations that Defendant Lomelli was conspiring to violate

14

Plaintiff’s rights do not suffice to state a claim. The Court will grant Plaintiff leave to amend

15

this claim.

16
17

C.

Retaliation

Plaintiff states that he was retaliated against by Defendant Lomelli for exercising his

18
19

constitutional rights.

20

“Within the prison context, a viable claim of First Amendment retaliation entails five

21

basic elements: (1) An assertion that a state actor took some adverse action against an

22

inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled

23

the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

24

advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th

25
Cir. 2005).
26
27

Plaintiff has pleaded facts insufficient to state a claim of retaliation. Plaintiff states
11

1

that Defendants Lomelli and Medina approached him, asking him about a staff misconduct

2

complaint Plaintiff had filed and threatening more assaults if Plaintiff didn’t drop it.

3

Filing a grievance is a protected action under the First Amendment. Valandingham

4
5

v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). However, the alleged assault threats

6

are not a sufficiently adverse action to rise to the level of retaliation, as threats alone are

7

insufficient to state a constitutional deprivation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.

8

1987). Thus, Plaintiff has satisfied the third prong of the retaliation standard, but fails to

9

satisfy the first.

10

With respect to the fourth prong, “[it] would be unjust to allow a defendant to escape

11
12

liability for a First Amendment violation merely because an unusually determined plaintiff

13

persists in his protected activity . . . .” Mendocino Envtl. Ctr. v. Mendocino County, 192

14

F.3d 1283, 1300 (9th Cir. 1999). The correct inquiry is to determine whether an official’s

15

acts would chill or silence a person of ordinary firmness from future First Amendment

16

activities. Rhodes, 408 F.3d at 568-69 (citing Mendocino Envtl. Ctr., 192 F.3d at 1300).

17

Plaintiff does not allege that his speech was chilled, nor has he demonstrated sufficient

18
adverse actions. Thus, Plaintiff has failed to satisfy the fourth prong.
19
20

The second element of a prisoner retaliation claim focuses on causation and motive.

21

See Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009). A plaintiff must show that his

22

protected conduct was a “‘substantial’ or ‘motivating’ factor behind the defendant’s

23

conduct.” Id. (quoting Morgan, 874 F.2d at 1314). Although it can be difficult to establish

24

the motive or intent of the defendant, a plaintiff may rely on circumstantial evidence. Bruce

25
v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (finding that a prisoner established a triable
26
27

issue of fact regarding prison officials’ retaliatory motives by raising issues of suspect
12

1

timing, evidence, and statements); Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997);

2

Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (“timing can properly be considered as

3

circumstantial evidence of retaliatory intent”). Plaintiff alleges Defendants Lomelli and

4
5

Medina confronted and threatened Plaintiff regarding a staff complaint Plaintiff had filed.

6

The timing does appear to be suspect. However, Plaintiff does not state what role

7

Defendants Lomelli and Medina played in the incident. In fact, Plaintiff does not state that

8

either Defendant had knowledge of the incident. Thus, Plaintiff has not stated adequate

9

facts to satisfy the second prong of his retaliation claim.

10

With respect to the fifth prong, a prisoner must affirmatively allege that “the prison

11
12

authorities’ retaliatory action did not advance legitimate goals of the correctional institution

13

or was not tailored narrowly enough to achieve such goals.” Rizzo, 778 F.2d at 532. This

14

is not a high burden to reach. See id. (prisoner’s allegations that search was arbitrary and

15

capricious sufficient to satisfy this inquiry). Plaintiff makes no statements regarding

16

penological goals or whether the allegedly adverse acts were related to such goals. Thus,

17

Plaintiff has failed to reach the fifth prong.

18
Because Plaintiff has failed to allege sufficient facts to satisfy all five prongs of his
19
20

retaliation claim, the Court finds that he has failed to state a claim upon which relief could

21

be granted. The Court will grant Plaintiff leave to amend this claim and attempt to set forth

22

sufficient facts to state such a claim. In his amendment, Plaintiff should describe in greater

23

detail how all Defendants were involved with the incident and then the retaliation.

24

D.

False Charges/Due Process

25
Plaintiff makes a reference to false charges being filed against him by Defendants
26
27

Wojick and Lomelli. This appears to be a due process argument.
13

1

A prisoner does not have a “constitutionally guaranteed immunity from being falsely

2

or wrongly accused of conduct which may result in the deprivation of a protected liberty

3

interest.” Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989). Rather, the Fourteenth

4
5

Amendment provides that a prisoner “has a right not to be deprived of a protected liberty

6

interest without due process of law.” Id. Thus, as long as a prisoner receives proper

7

procedural due process, a claim based on the falsity of disciplinary charges, standing

8

alone, does not state a constitutional claim. Id.; Freeman v. Rideout, 808 F.2d 949, 951

9

(2d Cir. 1986); Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984). Under the Due

10

Process Clause, a prisoner is entitled to certain procedural protections when he is charged

11
12

with a disciplinary violation. Wolff v. McDonnell, 418 U.S. 539, 564-571 (1974). These

13

protections include a written notice at least twenty-four hours before the disciplinary

14

hearing, an opportunity to call witnesses and present documentary evidence, and a written

15

statement by the fact-finder as to the evidence relied upon and the reasons for the

16

disciplinary action taken. Id.

17

Here, Plaintiff makes one reference to false charges. He states nothing else related

18
to this claim. Because Plaintiff makes no allegations that he did not receive proper
19
20

procedural due process, his due process claim remains incognizable. See e.g. Williams

21

v. Cal. Dep’t of Corr. & Rehab., 2010 WL 935753, *7 (C.D.Cal. Jan.4, 2010); Rodgers v.

22

Reynaga, 2009 WL 62130, *2 (E.D.Cal. Jan.8, 2009). Therefore, Plaintiff’s due process

23

claim also fails. The Court will give Plaintiff one additional opportunity to amend such

24

claim. In the amended complaint, Plaintiff should describe the hearing he received.

25
E.

Personal Participation and Supervisory Liability

26
27

Plaintiff appears to be arguing that most of the named Defendants are liable for the
14

1

conduct of subordinates as, according to Plaintiff’s statement of facts, they were not

2

present and did not participate in any of the complained of conduct. In fact, many of the

3

Defendants are not mentioned at all in the factual allegations that make up Plaintiff’s

4
5

Complaint.

6

Under Section 1983, Plaintiff must demonstrate that each named Defendant

7

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

8

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

9

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

10

Iqbal, 129 S.Ct. at 1949.

“Government officials may not be held liable for the

11
12

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

13

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

14

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

15

through his own individual actions, violated Plaintiff’s constitutional rights. Id. at 1948-49.

16

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

17

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

18
267 F.3d 895, 915 (9th Cir. 2001); Wesley v. Davis, 333 F.Supp.2d 888, 892 (C.D.Cal.
19
20

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

21

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

22

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

23

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

24

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

25
deficient that the policy itself is a repudiation of constitutional rights.

Wesley, 333

26
27

F.Supp.2d at 892 (internal quotations omitted). However, an individual’s general
15

1

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

2

involvement. Id. (internal quotations omitted).

3

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

4
5

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

6

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

7

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

8

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

9

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

10

Cir. 1978)).

11
Plaintiff has not alleged facts demonstrating that most of the named Defendants

12
13

personally acted to violate his rights. In his Amended Complaint, Plaintiff needs to

14

specifically link each Defendant to a violation of his rights. Plaintiff shall be given the

15

opportunity to file an amended complaint curing the deficiencies in this respect.

16

V.

17

CONCLUSION AND ORDER
The Court finds that Plaintiff’s Complaint fails to state any Section 1983 claims upon

18
19

which relief may be granted. The Court will provide Plaintiff time to file an amended

20

complaint to address the potentially correctable deficiencies noted above. See Noll v.

21

Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). In his Amended Complaint, Plaintiff must

22

demonstrate that the alleged incident or incidents resulted in a deprivation of his

23

constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth “sufficient factual

24

matter . . . to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949 (quoting

25
Twombly, 550 U.S. at 555). Plaintiff must also demonstrate that each defendant personally
26
27

participated in the deprivation of his rights. Jones, 297 F.3d at 934.
16

1

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

2

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

3

amended complaint on claims and defendants relating solely to the issues discussed

4
5

herein.

6

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

7

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

8

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

9

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

10

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

11
12

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

13

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

14

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

15

Based on the foregoing, it is HEREBY ORDERED that:

16

1.

17

Plaintiff’s Complaint is dismissed for failure to state a claim, with leave to file
an amended complaint within thirty (30) days from the date of service of this

18
order;
19
2.

20

refer to the case number 1:10-cv-1493-GBC (PC); and

21
22

3.

23
24

Plaintiff shall caption the amended complaint “First Amended Complaint” and

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.

IT IS SO ORDERED.

25
26

Dated:
1j0bbc

June 16, 2011
UNITED STATES MAGISTRATE JUDGE

27
17